ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
STUART HOLLOWAY
Defendant
Counsel: T. Donnelly, for the Crown D. Reid, for the Defendant
HEARD: January 14, 15, 16, 17, 18, & 28, 2013
REASONS FOR JUDGMENT
A.J. GOODMAN J.
1Who was the driver of the single motor vehicle incident on May 10, 2009 on Hullett-McKillop road in Huron County, which resulted in the untimely death of Ms. Louise Laplante? That is the only triable issue in this case.
2Mr. Holloway is charged with four offences, namely; criminal negligence causing death, dangerous driving causing death, impaired driving causing death and drive with blood alcohol over 80 mg in 100 mL. causing death, all contrary to their respective provisions of the Criminal Code.
3Mr. Reid, on behalf of the defendant concedes that should this court find that Mr. Holloway was the driver of the motor vehicle, then the requisite elements of each of these charges have been made out.
4The Crown called eight witnesses. The defence called one expert witness.
Agreed Statement of Fact:
5At the conclusion of the Crown’s case the parties provided an agreed statement of fact. The defendant admits the following:
a. On Sunday, May 10, 2009 shortly after 9:00 p.m. a blue, 2 door, Lincoln Mark 8 motor vehicle was operated westbound on Hullett-McKillop Road, Municipality of Huron East, County of Huron, Southwest Region, Province of Ontario in a reckless manner, at a very high rate of speed and with a complete lack of regard for the surrounding vehicles and people. The driver of the Lincoln Mark 8 did not slow down or stop at the stop sign for westbound traffic while proceeding westbound through the intersection at North Line and Hullett-McKillop Road.
b. The speed limit was 80 km/h. The roads were clear and dry.
c. At the time the vehicle crossed the intersection there were two occupants in the front seat: Rejeane Louise Laplante who was 43 years old - she was born on October 29, 1965; and Stuart Holloway who was 54 years of age - his date of birth is March 26, 1956.
d. Rejeane Louise Laplante was ejected from the vehicle. She was found vital signs absent in a farmer’s field. She was pronounced dead at the scene by Dr. Eby at 21:50 (field pronouncement by telephone). Coroner Dr. Maarten Bokhout attended at the scene and at 10:37 p.m., he pronounced Louise Laplante dead. Dr. Bokhout’s opinion was that her cause of death was as a result of a broken neck. No post mortem was performed.
e. The vehicle in which Rejeane Louise Laplante and Stuart Holloway were occupants was a 1993 Lincoln Mark 8 with licence plate AWYV5O8. Both the vehicle and licence plate were registered to Stuart F. Holloway.
f. Following the collision Nicholas Cooke called 911. The 911 call was made at 21:07:54. The call lasted 10 minutes and 21 seconds.
g. On May 10, 2009, O.P.P. officers were dispatched by the Provincial Communications Centre to attend to the single motor vehicle collision. Constable Walt Van Essen was the first police officer and emergency services officer on scene. He arrived at 9:22 pm.
h. P/Cst. Phil Hordijk arrived on scene at approximately 9:30 pm. At approximately 9:37 pm Cst. Hordijk detected the odour of an alcoholic beverage coming from the area of Mr. Holloway’s mouth. This, in combination with a number of other factors, caused P/Cst. Hordijk to believe that Stuart Holloway’s ability to operate a motor vehicle was impaired by alcohol. Having formed the requisite grounds for arrest, at 9:43 p.m. Cst. Hordijk placed Mr. Holloway under arrest for Impaired Operation of a Motor Vehicle. Stuart Holloway was informed of his right to counsel which he indicated he understood and declined. He was also cautioned which he indicated he understood.
i. At approximately 9:51 pm Mr. Holloway was transported by ambulance to Clinton Hospital. At the Clinton Hospital, P/Cst. Hordijk observed that Stuart Holloway was only wearing one shoe – a black, left, size 9, Penman shoe. The shoe was untied and removed from Mr.Holloway’s foot by hospital staff. P/Cst. Hordijk seized that shoe.
j. At approximately 10:30 pm, at the Clinton Public Hospital Emergency Ward, Dr. Keith Hay advised P/Cst. Hordijk that as a result of his injuries, Mr. Holloway would be unable to provide a suitable sample of his breath for analysis.
k. At approximately 10:46 p.m. P/Cst. Hordijk advised Mr. Holloway that Rejean Louise Laplante had been pronounced dead. As a result P/Cst. Hordijk explained to Mr. Holloway that his jeopardy had changed, and the charge would now be Impaired Operation Causing Death. Stuart Holloway was then read the blood demand which he indicated he understood and would comply.
l. At 11:10 pm Mr. Holloway was transported to the Victoria Hospital Trauma Unit in London, Ontario prior to any blood being taken.
m. On May 11, 2009 at 5:50 a.m., P/Cst. Kevin Grainger arrested Stuart Holloway for Impaired Driving Causing Death, Dangerous Driving Causing Death, and Criminal Negligence Causing Death.
n. On May 11, 2009, Mr. Holloway was treated at Victoria Hospital (London Health Sciences Centre) by Dr. Robin Varghese. A summary of Mr. Holloway’s injuries included:
i. Flail segment right anterior chest wall.
ii. Right tension pneumothorax.
iii. Distal right clavicle fracture
iv. Right scapular fracture
v. Fracture of sternal costal joint in multiple locations on right side.
vi. Right forehead laceration
vii. Left forehead laceration.
viii. Right posterior thorax abrasions.
ix. T-3 burst fracture.
x. L-3 burst fracture.
o. On May 11, 2009 at 00:17 a.m. a number of vials of blood serum were drawn from Stuart Holloway at Victoria Hospital by Nurse R. Bertram under the direction of Dr. Robin Varghese. The vials of serum blood from Mr. Holloway were labelled, assigned patient identification number # 1094 43 46, and sent to the Core Lab inside the hospital.
p. On May 11, 2009 at approximately 3:40 am Constable. S. Skeaff, Ontario Provincial Police, attended the Core Lab located within Victoria Hospital. Alison Aitken, a Blood/Gas Technician for the Core Lab, in the presence of Cst. Skeaff, sealed one of the vials of serum blood taken from Stuart Holloway.
q. On May 11, 2009, some of the vials of Stuart Holloway’s blood were analyzed at Victoria Hospital Core Lab for medical purposes. The toxicology screen of Mr. Holloway’s blood resulted in an ethanol alcohol reading of 41.6mmol/L.
r. Pursuant to search warrant, on May 26, 2009, P/Cst. Hordijk attended at Victoria Hospital and seized the sealed vial of blood taken from Stuart Holloway on May 11, 2009 P/Cst. Hordijk also seized Mr. Holloway’s hospital records including the records of analysis of the blood sample for ethanol alcohol.
s. On May 27,2009 the blood serum of Mr. Holloway seized from Victoria Hospital was sent to the Centre of Forensic Sciences.
t. The blood serum seized by P/Cst. Hordijk was analyzed by Rachelle Wallage, M.Sc., a Forensic Toxicologist at the Centre of Forensic Sciences, for ethanol alcohol. She concluded that the serum ethanol concentration at the time the sample was collected was 168 milligrams/100 mL. This concentration converts to a blood alcohol concentration of 140 to 153 milligrams of alcohol in 100 millilitres of blood. These readings related to the time the blood was drawn and not the time of the driving.
u. On August 31, 2009 Rachelle Wallage, M.Sc., a Forensic Toxicologist with the Centre of Forensic Sciences, provided an additional Report which concluded:
i. The serum ethanol concentration in Stuart Holloway’s blood of 41.6 mmol/L as analyzed at the Core Lab, Victoria Hospital on May 11, 2009, converts to a blood alcohol concentration of 159-174 milligrams of alcohol in 100 millilitres of blood at the time the sample was collected. Rachelle Wallage took that reading and projected it back to the time of driving. She concluded, that based on the hospital result, Stuart Holloway’s projected blood alcohol concentration at the time of driving - approximately 9:10 p.m. - was 170 to 236 milligrams of alcohol in 100 mL of blood.
ii. Rachelle Wallage took the result from the sample of blood that she had analyzed – a serum ethanol concentration of 168mg/100ml. She converted it to a blood alcohol concentration. She concluded that Stuart Holloway’s blood alcohol concentration, based on her analysis of his serum blood, was 140 to 153 mg/100 mL at the time the sample was collected. Rachelle Wallage then took that reading and projected back to the time of driving. She concluded, that based on her own analysis, Stuart Holloway’s projected blood alcohol concentration at the time of driving – approximately 9:10 p.m. – was 151 to 215 milligrams of alcohol in 100mL of blood.
iii. It was her scientific opinion that an individual would be impaired in the ability to operate a motor vehicle at the projected blood alcohol concentrations.
v. Following the collision, Stuart Holloway’s motor vehicle was seized by the O.P.P. The vehicle was towed to the Huron Detachment and secured. On May 12, 2009 P/Cst. Hordijk obtained a Search Warrant to search Stuart Holloway’s vehicle.
w. On May 15, 2009 P/Cst. Hordijk, Cst. Blacklock and Cst. Myatt executed the search warrant on Stuart Holloway’s vehicle. Cst. Myatt is a trained Identification Officer with the O.P.P. Cst. Myatt seized from the vehicle a Black, right, size 9 Penman’s shoe from the floor of the driver’s side. He also seized the driver’s airbag from the steering wheel and the passenger’s airbag from the front passenger console. The airbags were submitted to the Centre of Forensic Sciences.
x. Kelly Bowie, M.Sc., a Forensic Biologist at the Centre of Forensic Sciences examined the two airbags seized from Stuart Holloway’s motor vehicle. She examined them to determine if blood was present. She concluded:
i. Blood was detected on driver’s side airbag. DNA was extracted from a swab from bloodstain of the driver’s side airbag. A male DNA profile was generated that was suitable for comparison.
ii. Blood was detected on the passenger’s side airbag. It was not of sufficient quality to produce DNA.
y. As a result of the male DNA profile being generated on the driver’s side airbag of Stuart Holloway’s vehicle, D/Cst. Hordijk obtained a search warrant to seize DNA from Stuart Holloway. The DNA search warrant was executed on January 12th, 2010 when a sample of blood was drawn by Forensic Identification Officer Myatt of the O.P.P. from Stuart Holloway. This sample of blood was sent to the Centre of Forensic Sciences for analysis.
z. Kelly Jo Walden, M.Sc., a Forensic Biologist at the Centre of Forensic Sciences, compared the DNA profile generated from the driver’s side airbag of Stuart Holloway’s vehicle to the blood seized from Stuart Holloway on January 12, 2010 on execution of the DNA warrant.
aa. From the sample of blood seized from Stuart Holloway on execution of a DNA warrant, she generated a DNA profile for Stuart Holloway. She compared the DNA profile of Stuart Holloway to the DNA profile generated from the bloodstain on the driver’s side airbag of his vehicle. She concluded that Stuart Holloway could not be excluded as the donor of the DNA profile determined at 9 STR loci from the bloodstain on the driver’s side airbag from his vehicle. She further concluded that the probability that a randomly selected individual unrelated to Stuart Holloway would coincidentally share the observed DNA profile is estimated to be 1 in 87 billion. She also examined the driver’s and passenger’s airbags for saliva. Saliva was located on the driver’s side airbag only; however it was not of sufficient quality to generate a DNA profile.
bb. The continuity of all exhibits and seizures is admitted.
The Evidence
6As the issue in this case is the identity of the driver of the motor vehicle, the relevant evidence centering on that particular issue will be reflected in these reasons.
Alicia Nesbitt
7On May 10, 2009, during the early evening, Alicia Nesbitt was driving a Yukon 4 x 4 SUV. Her boyfriend at the time, Mr. Nick Cook, was the owner of the SUV and was a passenger in the vehicle. Ms. Nesbitt was heading south on North Line and was approaching Hullett-McKillop Road. As she was approaching the intersection she looked over to the left and saw tail lights coming towards her vehicle at right angles.
8Mr. Cook yelled at her to stop. Ms. Nesbitt hit the brakes prior to reaching the intersection. She described the other vehicle crossing their path going airborne in the middle of the intersection. The vehicle continued west on Hullett-McKillop road with the backend kicking out to the left and then the car rolled three to five times and it ended up in the ditch. She parked the SUV and Mr. Cook got out. She yelled to him not to approach the vehicle.
9Ms. Nesbitt testified that there was no stop sign for her direction of travel. The other vehicle had a stop sign yet the vehicle did not stop and drove through the intersection at a very high rate of speed. She described the vehicle flying through the air or being “ramped” at the crest of the intersection. She explained that the vehicle went airborne and it came down hard with sparks flying as a result of the vehicle’s undercarriage hitting the pavement.
10Ms. Nesbitt testified that as the vehicle lost control and started to roll (or during the first roll), she saw something come out of the passenger window but she was not sure what it was. She testified that she did not see anything else come out of the vehicle. After the vehicle ceased rolling, it landed right side up. She testified that another motorist arrived at the scene shortly after the incident and prior to the arrival of the authorities. Ms. Nesbitt never got out of the SUV.
11In cross-examination, Ms. Nesbitt denied that her view was obstructed by trees, structures or by distance from the intersection. She testified that she had no idea if the driver or passenger windows were up or down. She clarified that she believed the vehicle rolled a minimum of three times but she was not counting the number of rolls. She reiterated that she only saw one thing come out of the vehicle through the passenger window.
Nick Cook
12Mr. Nick Cook was a passenger in his vehicle that Alicia Nesbitt was driving on the evening in question. He testified that the incident occurred shortly after 8:00 or 8:30 p.m.
13As they were coming south down North Line approaching Hullett-McKillop Road, he looked to his left and saw a vehicle coming very quickly towards the intersection heading westbound. He told Alicia to slow down and she came to a stop about 50 feet away from the intersection. Mr. Cook testified that the other vehicle was going too fast and was not going to stop for the stop sign.
14Mr. Cook observed the vehicle clear the intersection going airborne then it came down onto the middle or crown of the intersection, crashing down onto the pavement with sparks flying. After clearing the intersection, the vehicle continued west and he saw the vehicle go to the right and then catch the ditch on the driver’s side and it started to roll three to four times. He explained that it seemed that the driver was trying to get control of the vehicle but was unable to do so. The vehicle ended up in the south ditch.
15Mr. Cook testified that he saw an individual with long hair seated in the passenger seat as the vehicle was in the middle of the intersection. He testified that he was 40 to 50 feet away from the intersection when he made this observation.
16In describing the first and second roll, Mr. Cook testified that he saw pieces flying out the passenger side. At one point he saw something that was red, black and green come out of the passenger side window. That object flew way up into the air and went a distance. He testified that the red, black and green object seemed to be like “a shirt spread out in the wind”.
17They followed the vehicle to the point of its final rest. Mr. Cook started to approach the vehicle in the ditch, but heard Alicia call out to him. He called 911. Mr. Cook testified that the vehicle was smoking and windows were smashed. He decided not to go near the car. He could not see anyone in the vehicle but he looked around the vehicle and found the deceased lying in the field, her eyes glazed over. The deceased was wearing green or brown camouflaged patterned pants and a red and black jacket at her waist.
18Another motorist showed up at the scene before the arrival of the police. He did not know any of the parties involved in this incident.
19In cross-examination, he testified that he could clearly see who was sitting in the passenger seat of the vehicle. He saw both occupants smash their faces off the dash as the vehicle came down in the middle of the intersection striking the pavement. He also admitted that he never mentioned in his statement that he observed the occupants flung forward or hitting their heads on the dashboard as the vehicle came down in the intersection.
20Mr. Cook did not agree with counsel that his view was obstructed. He did not think that he was more than 50 feet from the intersection when he made his observations and he claimed that he saw the whole event and did not lose sight of the vehicle.
21He was challenged with respect to his prior statement to police wherein he did not mention anything about an individual with long hair seated in the right passenger seat of the vehicle. Mr. Cook responded that he believed he did not say anything because all he could think of was the deceased lying in the field and he was shook up at the time.
22Mr. Cook testified that before April 2011 he did not speak to the police and he never reviewed his statement prior to coming back to court. When asked why he did not contact the police or Crown attorney, he responded that he was flabbergasted that this information was not in his original statement. He also stated that the reason he did not update his statement was that he was told that he would be contacted by Victim Witness or police for a follow-up. However, he was never contacted for any additional information.
23Mr. Cook admitted returning to the scene the next day to view what had occurred during the daylight hours. Mr. Cook disagreed with counsel’s suggestion that he went out to the scene to try to put the pieces together after-the-fact in order to substantiate his observations. He stated that he is not confused about what he saw.
24Mr. Cook reaffirmed that the red, black and green object came out of the passenger side window on the second or third roll and he that it looked like a coat or a sweater. He could not tell whether the occupant with the long hair in the passenger seat of the vehicle was a girl or a guy because he acknowledged that some men have long hair. From his observations of the vehicle in the ditch, he noted that the windows were smashed on both the driver and passenger sides.
25Mr. Cook estimated the speed of the vehicle at well over 100 kilometres an hour. He testified that he recalled the windows of the vehicle being up when he observed the vehicle going through the intersection however he could not see the driver’s side window. Mr. Cook opined that had they not slowed down and come to a stop prior to reaching the intersection, in the manner in which the westbound vehicle was driven, they would have all been “wiped out”.
Aliecia Biesinger
26Ms. Biesinger had just dropped off her children at their father’s home on the evening of May 10, 2009. In returning home, she arrived at the intersection of North Line and Hullett McKillop Road after 9:00 p.m. Ms. Biesinger was east of North Line and she noted a vehicle parked on the side of the road. She spoke to the occupants, (Mr. Cook and Ms. Nesbitt) and was advised there was an accident with a woman lying in the field. She was advised that they had called 911.
27Ms. Biesinger went to the vehicle which landed upright in the field. She approached the passenger window side and immediately smelled alcohol emanating from the interior of the car. She looked into the vehicle and saw a gentleman lying low across the front of the car seat. Both the passenger and driver side windows were either down or completely gone.
28Ms. Biesinger was about one foot away from the passenger door and asked the gentleman, (later identified as the defendant), if was anyone with him. Mr. Holloway responded affirmatively.
29Ms. Biesinger described Mr. Holloway’s position as on his left side with his face pointing down to the passenger seat. She could not see his face. His head was under the passenger armrest, his back was over the passenger seat and his legs were in the driver’s seat area. His head was closest to her and was wedged in tight under the passenger armrest. His neck and shoulders were in the passenger seat; his hips and bottom backside were over the top of the console with his rear pointing up. His legs were across the driver’s seat but she could not see where his feet were.
30Ms. Biesinger testified that police officers and ambulance attendants arrived soon thereafter. She stayed beside the car while the ambulance attendant and police officer dealt with the gentleman in the car. At one point, he was asked his name and the gentleman responded “Stu”. She testified that he was removed from the vehicle through the passenger door.
31She testified that Mr. Holloway’s physical body positioning did not change from the time she made her initial observations to the time of the arrival of the ambulance attendant and police. She described some wiggling, but no full movement, as Mr. Holloway did not shift his arms or legs.
32In cross-examination, Mrs. Biesinger testified that Mr. Holloway was lying low and straight across the car’s middle section, and across the console. His legs were in the driver’s seat yet she could not see his feet. She did not know if he had any injuries, although Mr. Holloway was groaning.
33Ms. Biesinger testified that she had asked several questions of Mr. Holloway and he responded to her. The first question was “are you okay?” and his response was “no.” The second question was “what is your name?” and his answer was “Stu.” The last question was: “is anyone with you?” and his answer was “Louise.” She testified that she never asked any other questions of Mr. Holloway.
34She testified that Mr. Holloway later communicated to her and volunteered some information. Mr. Holloway stated “Louise was driving, it was the last time he was going to allow her to drive his car.” She never followed-up on this unsolicited comment with any questions.
35In re-examination Ms. Biesinger testified that she never asked Mr. Holloway if he was driving the vehicle and she did not recall the exact words he used when he made the utterance to her about Louise driving the vehicle.
Mr. Terry Lynch
36Mr. Lynch is an advanced care paramedic with Huron County and has been so employed for many years. He has extensive training and experience as a paramedic.
37Mr. Lynch testified that he attended the scene and went directly to the passenger side of the vehicle. The sole occupant, later identified as the defendant, was alert and had an awareness in being able to communicate his symptoms. Mr. Lynch testified that his only focus was on the health and safety of Mr. Holloway. Mr. Lynch explained that the reason for his questions was to determine the extent of the occupant’s injuries and the status of all of the individuals who were in the vehicle.
38Mr. Lynch described Mr. Holloway’s position as lying in the driver’s seat and into the passenger seat with his face pointing down. Mr. Holloway was lying straight across into the passenger seat, face in the seat, with his bottom in the foot well on the driver’s side. His hips and legs were into the foot well on the driver’s side. His legs were in the brake and gas pedal area and his feet were located in the driver’s area. He was leaning over the console with his hips over the console. There was a divider separating the passenger and driver’s seat.
39Mr. Lynch asked questions of Mr. Holloway in order to make an assessment as to the extent of the injuries. Mr. Lynch testified that Mr. Holloway was severely injured, with a punctured lung, possibly leaking into his chest. He could see air coming out through the chest cavity and he considered Mr. Holloway’s injuries to be life threatening. Despite his apparent serious injuries, Mr. Holloway was conscious and responded verbally to questions and he had the requisite motor skills. Mr. Holloway stated that he was not wearing a seat belt.
40Mr. Lynch asked Mr. Holloway who was driving and Mr. Holloway immediately responded that he was the driver of the vehicle. Mr. Lynch added that a police officer was right behind him when Mr. Holloway responded to his inquiry.
41In cross-examination, Mr. Lynch disagreed that Mr. Holloway was jammed up against the passenger door. He testified that Mr. Holloway was close to the passenger door and he did not know if Mr. Holloway’s head was right at the door. He disagreed with counsel’s suggestions that Mr. Holloway’s legs were not in the driver’s side foot well area. Mr. Lynch testified that Mr. Holloway’s legs were bent right into the foot well and his feet were in the area of the brake and gas pedal. He added that Mr. Holloway did not move prior to him being extricated from the vehicle.
42Mr. Lynch acknowledged that during the course of his interaction, Mr. Holloway had also told him that he was not the driver of the vehicle. Mr. Holloway provided some other details unsolicited by any questions of him. Mr. Lynch testified that Mr. Holloway informed him that Louise was driving and that there was excessive speed and she could not control the car. Mr. Lynch was not sure if these statements were made to him while Mr. Holloway was in the vehicle or when he was in the ambulance on route to the hospital.
Provincial Constable Walter Van Essen
43Constable Van Essen is a member of the Ontario Provincial Police and has 24 years of service. He was stationed at the Mitchell Detachment in Perth County.
44Constable Van Essen received a call about 9:13 p.m. and as he was the closest police vehicle in the area, he attended the scene, arriving at 9:22 p.m. Upon his arrival he did not note any other emergency vehicles at the scene. Upon his arrival it was dusk and the daylight was rapidly fading. He briefly spoke to the individuals at the side of the road and then went to the area where the vehicle had ended up.
45Constable Van Essen observed a male in the vehicle who was leaned across the centre console; his feet in the driver foot well area at the gas and brake pedals, stretched across the front passenger seat with his head up to the passenger door. He described Mr. Holloway’s position as sitting in the driver’s bucket seat, his waist twisted over to the passenger side, lying across the centre console, with his buttocks and legs still on driver’s side, and his feet in the gas pedal area. The vehicle had bucket seats with a centre console.
46Constable Van Essen asked the individual his name and the response was “Stuart Holloway”.
47Constable Van Essen walked away from the vehicle through the field and did not see anyone else. He returned to the passenger side door of the vehicle and upon his return, the paramedics were already on scene. He was five to ten feet away from the passenger door. Constable Van Essen testified that Mr. Holloway did not appear to move at all. There was a conversation between the paramedic and Mr. Holloway. He testified that Mr. Holloway’s statement to the paramedic was to the effect; “Louise tried to drive but couldn’t do it so I drove.” Constable Van Essen left the area to search further west and he found the deceased lying unmoving and face-up in the field. She appeared to have sustained a broken neck.
48Constable Van Essen testified that he could smell an odour of alcoholic beverage emanating from the interior of the vehicle and when Mr. Holloway moaned, the odour was more pronounced.
49In cross-examination, Constable Van Essen maintained that Mr. Holloway’s buttocks were not over the centre console; rather his hips and lower stomach were over the centre console. He disagreed that Mr. Holloway’s feet were in the air. He testified that Mr. Holloway’s feet were in the brake and gas pedal area and Mr. Holloway was not moving his legs.
Provincial Constable Susan Blacklock
50Constable Susan Blacklock is a member of the Ontario Provincial Police and was qualified to give an expert opinion in collision reconstruction, speed formula, occupant kinematics, and general scene analysis.
51Constable Blacklock described her scope of duties and involvement when she was called out to investigate the single motor vehicle collision on May 10, 2009. She described the location as a rural scene, with North Line running north-south and Hullett-McKillop Road running east-west. There were no lane markings on the road and there were ditches on each side of both roads with no gravel shoulders. On Hullett-McKillop road at the scene of the incident, there was not much of an elevation from the roadway onto the north side, whereas on the south side the road sloped off into a hayfield. Just west of North Line and prior to the intersection, there was a posted 90 km speed limit sign. Hullett- McKillop Road was not posted, but has a 80 km per hour speed limit. There is a stop sign for traffic heading east and west on Hullett-McKillop Road at North line, while North Line had no traffic control device at the intersection. At the middle of the intersection there was a slight crest or elevation as one headed east or west on Hullett-McKillop Road.
52Constable Blacklock arrived at 10:51 p.m. and she described the weather upon her arrival at the scene as cool and clear, about four degrees Celsius. It was dark and the area was not well-lit. She testified that she later re-attended the scene during the daytime hours on May 11, 2009.
53Her initial investigation included personal observations of the entire scene including but not limited to various scrape marks, gouges, scratches, tire marks, debris and other indicia to assist her in developing a scene diagram and an opinion as to how the vehicle ended up where it did.
54Constable Blacklock located pieces of the driver’s side mirror at the south edge of the road and discovered various contact areas where it indicated that the vehicle had slid, tripped, impacted and then began to roll. Other gouges were discovered throughout the scene. Her observations led to her formulating a scaled diagram of the scene.1
55Constable Blacklock made observations of the vehicle and she examined the vehicle’s seatbelts and had noted that both airbags had been deployed. She saw a black running shoe in the driver’s foot well under the brake pedal. She noted blood on the passenger inner panel and on the passenger seat. She discovered the deceased in the field and described the clothing worn by Ms. Laplante. She located a running shoe situated near the body.
56Various photographs were entered into evidence to assist the Court with the scene as Constable Blacklock observed it. As well, these photographs corroborated the various objects and markings giving rise to the legend as shown in ex. 15. In ex.15, various measurements were taken from the centre mass of the vehicle at rest to other notable gouges, markings or debris.2
57Constable Blacklock testified that in her view, the speed of the vehicle (as modified by defence counsel’s questioning) at the time of the commencement of the skid was between 122 to 151 km an hour.
58Taking into account the measurements as depicted in Ex.15,3 Cst. Blacklock opined that the vehicle in question was travelling westbound toward the intersection at a high rate of speed. At the crest of the intersection, the undercarriage scraped the roadway allowing the vehicle to bottom out. Constable Blacklock testified that it appeared that the vehicle had gone through the intersection, travelling westbound then travelled off to the side of the road, rotated counter clockwise, re-entered the road, and then rotated in a clockwise direction. Eventually the vehicle stopped sliding forwards and tripped on the driver’s side and began to roll.
59Constable Blacklock testified that the loss of control commenced when the vehicle rotated counter-clockwise and then clockwise as it skidded, leaning towards driver-side. The trip commenced at “B” then the passenger side hit at “C” and then the driver-side hit again at “E”. In Constable Blacklock’s opinion, the significant impact was at “C” when the passenger’s side struck the ground after the first roll. The pillar of the vehicle was impacted and there was extensive vehicle damage with a significant gouge in the road. In her view, the occupant was likely ejected during the early stages of the rollover through the passenger window at “C”.4
60Constable Blacklock opined that the person remaining in the vehicle with the head faced down in the passenger seat, twisted over the center console with legs and feet in the driver’s seat area is consistent with that individual being the driver. That person was unrestrained and the individual’s lower torso and feet in the foot well area got caught up with the configuration of the center console area and the steering wheel. Constable Blacklock opined that even if the individual’s legs were not in the foot well area of the driver’s side, her opinion would not change.
61In cross-examination, Constable Blacklock was challenged with respect to her conclusions. Much of the questioning went to the issue of her investigation of the scene.5
62Constable Blacklock was asked about the driver’s side window being open. She responding that “the window could have been open as there was no dicing on the window or it was possible that [it] was shattered on impact.” She testified that there were glass fragments in the passenger side area. If the driver’s window was shattered she would have expected to see glass fragments on the driver’s side, which she did not observe. She agreed with counsel that she did not see any evidence of fragments, yet she could not opine either way. She was asked by counsel that if the driver’s side window was opened, whether that could be the first ejection portal. Her response was “well it may have been an open portal, one needs to look at the forces and dynamics of the vehicle as well as the exit portal of the vehicle.”
63Constable Blacklock was questioned with respect to the number of vehicle rolls. In her view, she believed that there were two full rolls and no extra revolution between “B” and “C” based on her analysis of the scene.
64Constable Blacklock confirmed that neither occupant wore seatbelts as there was no loading observed on either belt. She agreed that she wasn’t sure if the shoe found in the driver’s side foot well had been moved before her arrival, however she did not believe that the shoe was moved. The shoe was in the brake pedal area and was not pinned down in any manner.
65Exhibit #15 was discussed at length with respect to the tripping point based on the debris, gouges and the markings of where the vehicle made contact with the ground. She testified that at “B” there was limited contact from the vehicles’ driver side mirror being detached and no significant impact occurred at that point. The vehicle was still moving and rotating around the occupants. When the passenger side struck ground at “C” the occupants were redirected by that force to the passenger side as that was the first significant impact. The passenger side hit forcefully against the road and caused a significant gouge as well as damage to the vehicle. She testified that after the hit at “C”, the passenger side of the vehicle would be rotating up, and the passenger would follow the direction of force. In her opinion, when the passenger side struck the ground, the direction of upward travel forced the passenger out towards the window. The driver was also going to go towards the direction of force but would be blocked by the passenger. She disagreed that there would be a partial ejection as in that case the vehicle would likely end up on top of the victim. She described that the velocity is at its highest during the initial stages of the rotation.
66Constable Blacklock did not agree with counsel’s suggestion that the driver’s foot well area did not restrict the driver’s body. She stated that while an individual could move the upper portion of his body, his lower body would be restricted by centre console, steering wheel and brake pedal areas. She disagreed that it was physically impossible to have partial ejection of the driver while the driver’s feet remained in the foot well, given the direction of force due to the rotational spin of the vehicle.
67Constable Blacklock testified that she checked for evidence of ejection by examining the interior of the vehicle, including transfer marks. She looked for any evidence of a body being slammed on the door or a bowing out of the doors or panels and her results were negative. However, she admitted that she did not see any physical evidence from her observations of either door.
68In Constable Blacklock’s opinion, Ms. Laplante was the passenger. She was ejected after hitting “C” and on the upswing of the vehicle’s rotation. She travelled approximately 37 metres from the point of ejection during the upswing of the vehicle’s rotation to her final resting place. The deceased’s ejection on the upswing would result in her going higher into the air and away from the vehicle as the vehicle was rotating. Cst. Blacklock could not opine on the angle of the ejection.
69When asked if the driver could be ejected at “C” over the passenger through the passenger window, Constable Blacklock’s response was “that was highly unlikely, there are too many objects and a small porthole to allow that to happen.” She did not believe that the driver was ejected. However, if the driver was ejected it would have only been after the passenger would have gone out of the window. She disagreed that the driver would be ejected at “E” because at that time the vehicle had lost most of its velocity after the passenger side impact at “C”.
John Donald Mustard
70The Crown called John Donald Mustard, a forensic engineer with the Center of Forensic Sciences. Mr Mustard was called to give an opinion on the question of occupant kinematics. There is no issue with regards to his expert qualifications.
71Mr. Mustard described general vehicle dynamics, and the principles of physics involving the forces which impact on vehicles and their occupants as a vehicle moves.
72In addressing the commencement of the trip phase, Mr. Mustard testified that the vehicle’s rotation had probably slowed down by various impacts, but it was still occurring and the vehicle had continued to rotate and move forward until gravity pulled it down and it struck the ground. Each contact with the ground caused the vehicle to lose energy both in forward speed and rotational energy. Between those contacts, the vehicle was a spinning drum with occupants inside it. Mr. Mustard testified that there was a constant movement of occupants and at the beginning of the rotations it is very predictable as to where those occupants would go and what their tendencies would be.
73Mr. Mustard testified that when the tires dug into the side of the road, they produced a large lateral force on the vehicle. He testified that the centre of mass of the vehicle kept moving in its original direction but it stopped because the vehicle was pivoting up, and the centre of mass rose with the vehicle as that pivoting was occurring. At the point where the vehicle started rolling is where the most rapid spinning occurred. The vehicle was rolling being pulled down by gravity and there were occasionally ground contacts. The passenger side of the vehicle, including the A-pillar and roof rail and the front fender were all damaged from being contacted forcefully with the ground.
74Mr. Mustard testified that, assuming two occupants, one driver and one in the front passenger seat, as the vehicle was moving sideways and started to roll, at the trip point, the vehicle was suddenly decelerating very quickly. The unbelted occupants were going to continue travelling in their original direction. As the vehicle pivoted upwards at the trip point, the occupants tried to continue moving straight, but because their seat was moving upwards against them, they were lifted by their seat while trying to keep on moving in their original speed. He testified that when the vehicle started to slow down, the occupants continued in their original speed and they moved towards the driver’s side. The driver would be stopped in movement by the driver’s door and the passenger would be stopped in movement by the centre console as they begin to slow down to the vehicle’s speed.
75Mr. Mustard added that the vehicle is also rapidly spinning or rotating at this point. The spinning of the entire vehicle will start to move those occupants towards the outside of the vehicle. The passenger on the right side of the vehicle will move further to the right because of the spinning until the next impact. With all that rapid spinning, both occupants were moving to the outside of the vehicle. The passenger was forced against the passenger door window and roof beam. At the same time, the driver was going to be moved further to the left until that person contacted the door and was stopped by the door. This effect will continue until something else happens, namely a forceful impact to get them to overcome the centrifugal force that was holding them against the outside the vehicle.
76Mr. Mustard testified that at “B” the driver was most vulnerable for a very brief period and then the passenger became most vulnerable to be ejected. It wouldn’t take very long for the passenger to get from the centre console up to the right side as the vehicle was spinning very rapidly. Once the impact was made at “C”, it forced the passenger against the passenger door and window and at the same time, tended to move the driver towards the centre console.
77In addressing occupant kinematics, Mr. Mustard testified that at the impact at “C” and the continuation of the spinning the passenger was wedged tight against the passenger door and window area. The highest forces of the whole rotational phase are occurring on that person at that time. From the impact and spinning away from that right side impact, there are residual effects of being pressed against that passenger side, plus the centrifugal forces acting on it. In Mr. Mustard’s opinion, it was very likely that someone was going to get ejected at that point as the forces and the spinning are at their highest. Mr. Mustard opined that the position of the passenger was perfect for getting ejected right against the right side opening.
78Mr. Mustard testified that the driver at and following the impact at “C” would have tended to get pressed against the centre console and his upper torso may have gone past the centre console. The forces were acting laterally on the driver, described as a sideways force acting on the legs and on the upper torso, both getting pressed against the centre console area. The vehicle lost some rotational speed due to the impact at “C”. If the passenger did not get ejected, then the passenger was still pinned against the opening at the passenger window. The driver will have moved back towards his position in the driver’s seat. By the same spinning, the centrifugal forces were going to try to move the occupants towards the outside of the passenger compartment away from the centre of the mass of the vehicle.
79Mr. Mustard testified that the further into this whole sequence of events, the more uncertainty there is and it becomes more difficult to specify where the occupants may be. A driver generally is more constrained in their position because of the steering wheel, dashboard wrapping around them and the centre console. The passenger is more vulnerable to ejection than the driver.
80Mr. Mustard opined that the first strong ejection opportunity for the passenger was after the passenger side had struck the ground at “C”. The passenger side was coming off the ground and moving upwards with the high velocity and high rotation rate can easily throw an occupant a considerable distance, as in this case, to her point of impact and place of rest. The other occupant if they had been in the passenger’s position, would have had to not been ejected during that time and would have had to have rearranged themselves to become sideways in the vehicle. Mr. Mustard testified that he didn’t see the occupant kinematics or the vehicle dynamics producing that kind of a rearrangement of the driver’s position.
81Mr. Mustard opined that the distance that an ejected person can go through the air depends on the lateral speed and the spinning speed. At the beginning of this rotation you have high speeds available to throw an occupant and the direction that they go is dependent on the angle that they take off from the vehicle.
82In addressing the potential for the driver to be ejected, Mr. Mustard testified that just as the vehicle was tripped and the wheel is leaving the ground, both occupants were moving towards the driver’s side. The driver would potentially be vulnerable to going out their side of the vehicle as it rotates. With the driver side down, the driver is becoming vulnerable as that driver’s window is aiming towards the ground and then back in the direction from which the vehicle came and then eventually upwards until the vehicle strikes on the driver’s side at “B”.
83In reviewing ex. 15, Mr. Mustard opined that while there is a slight possibility for ejection for the driver during that initial rolling phase at “B”, yet it is nowhere near as great as it would be for the passenger to be ejected right after the passenger side struck the ground at “C”. Mr. Mustard opined that for the driver to get thrown out at that early stage, the driver would have to get thrown out and end up where the body came to rest, just past “D4”. At the same time, the passenger would not have to get ejected. In Mr. Mustard’s opinion that is a less likely event to occur in spite of a more likely event right afterwards, that is, the passenger being ejected.
84In addressing the possible scenario of driver ejection at “E”, Mr. Mustard testified that there was an opportunity for the driver to get forced against the driver’s side and while the vehicle still rotating, (yet not very quickly), in order to provide an opportunity for the driver to continue his progress out the driver’s side of the vehicle away from “E”. However, there is quite a distance between where the vehicle came to a stop and where the body came to rest. In order to travel that distance the body would have to have some speed and the speed at “E” is almost negligible. Given the low spinning rate and the distance to where the body came down, Mr. Mustard opined that it was too far a distance for exiting a vehicle that is not travelling very fast at that point. The direction aspect seems to be too far south relative to the path of the vehicle. In Mr. Mustard’s view, that scenario was highly unlikely.
85Mr. Mustard concluded that in his opinion, the female person located in the field, was the passenger of the vehicle who was ejected from the vehicle during the early stages of the rollover at or just after the impact at “C”, when the energies and speeds were very high. In cross-examination, Mr. Mustard was vigorously challenged with respect to his findings and conclusions.
Dr. Lino Garcia
86The defence called Dr. Lino Garcia, PhD as a witness. He is an expert in accident reconstruction, speed analysis, vehicle kinematics, and occupant kinematics. Dr. Garcia was qualified to give opinion forensic engineering evidence. There is no issue with respect to his expert qualifications.
87Dr. Garcia was tasked to review Mr. Mustard’s reports. Dr. Garcia provided two reports; one with respect to his critique of Mr. Mustard’s report, and the second, a stand-alone analysis with his conclusions. He reviewed all of the material in preparation for his reports, including the police technical traffic information the investigative report, police photos, field notes, various diagrams, preliminary inquiry transcripts, the photographs of the vehicle, the damage sustained, interviews of witnesses and the report prepared by Mr. John Mustard among other considerations. Dr. Garcia relied upon and did not dispute the reliability of the diagram (ex.15) in advancing his expert opinions.
88The focus of Dr. Garcia’s opinion evidence was on the issue of occupant kinematics and who was the driver of the vehicle in question.
89Dr. Garcia testified that as the vehicle lost control forces were being applied on the driver side wheels causing the vehicle to move sideways. There was a rapid deceleration, with the vehicle continuing its initial forward movement with the center of gravity moving forward in the same direction. The left side wheels dug into the ground and as a result, there was a rapid deceleration causing the vehicle to trip.
90Dr. Garcia agreed with Mr. Mustard that the vehicle started to trip at “B” and continued to roll until the passenger side hit the ground at “C”. Based on this evidence, the vehicle appeared to have had limited contact with the ground between “B” and “C”. At “B” the driver side mirror made contact with the ground. At “C” there was a significant impact. He opined that he could not accurately identify what the various gouges where at “D1 to D4” by reference to the photographs and “D3” was not identified as to its source.
91In any event, Dr. Garcia testified that after the passenger side hit the ground, the vehicle continued to roll. He does not how many times that it rolled between “C” and “E” but he assumed that the vehicle rolled at least once. He added that from “E”, the vehicle continued to roll at least once until it came to its final rest in the field.
92Dr. Garcia agreed with Mr. Mustard that the speed of rotational forces was at the greatest at the time of the first tripping point. Any contact with the ground slowed the vehicle down and energy is lost after the initial tripping. He agreed that the gouge and initial trip at “B” did not slow the vehicle down as there was no significant impact at that point. However, the impact at “C” was the first significant loss of rotational forces as energy was dissipated through the impact to the passenger side of the vehicle. The airborne phase also causing some minor energy loss as air resistance may affect the vehicle. When the driver’s side hit the ground at “E”, Dr. Garcia stated that the vehicle had already undergone a significant reduction in velocity.
93Dr. Garcia testified that the occupants in the vehicle continued to travel in their initial direction of travel until there was a trip. In this case, the vehicle tripped and rolled on the driver’s side the right passenger moved to left center. As the vehicle rotated after the initial tripping the driver moved to the driver’s door and the passenger moved to the passenger door, based on the centrifugal forces. On the outside of the turn, and until the vehicle made ground contact, the centrifugal forces caused the occupants to move to the outside. A disturbing force on the passenger side occurred when it hit the ground. Both occupants moved to the right side of the vehicle.
94Dr. Garcia testified that one requires an open portal in order to exit a vehicle during a rotational event. He added that at the time of the tripping, his assumption was that the driver side window was down and the passenger window was up. In his opinion, the ejection occurred at the driver’s side window at “B” as both individuals where going towards the left driver’s side closest to the driver’s door. After the rotational speed at “B”, the occupants moved to the outside of the turn. He opined that the driver was ejected on the upside rotation from “B” to “C” and before the passenger side hit the ground due to being on the high side of the turn with a very high rotational speed.
95Dr. Garcia testified that in his opinion it was prior to “C” that the driver of the vehicle was likely to have been ejected. It would be unlikely that the driver would be ejected on the low side due to the rotational forces of the vehicle. As the driver was ejected between “B” and “C”, the passenger being unbelted was free to move within the vehicle after the initial tripping phase. The passenger side hit the ground at “C”. At that point the impact in the right side passenger side caused the individual to move to the right and it is likely that the front passenger went up into the roof area and was directed into the driver seat area by the subsequent impacts and the rotational forces.
96Mr. Garcia was challenged in cross-examination by Crown counsel including references to his two written reports. For example, as Dr. Garcia was reciting verbatim from page 5 of his December 5, 2012 report, the following exchange took place.
MS DONNELLY: Q. You just omitted the portion of that sentence when you read that that said with the left side of the vehicle and you did that on purpose, didn’t you, sir?
A. Outward with the - because the left side of the vehicle is leading in this collision, in this tripping phase.
Q. Sir, the sentence read, during the airborne phase immediately after tripping,...
A. Mmm hmm.
Q. ...as the vehicle rotated around its left side, the occupants would tend to move upward and outward with the left side of the vehicle away from the vehicle centre of mass, right?
A. Yes.
Q. And when you read that back, you omitted the words with the left side of the vehicle, right?
A. It wasn’t my intention to omit it, it just.
Q. It was your intention to omit it...
A. No, it wasn’t.
Q. ...because it doesn’t support your position...
A. It wasn’t.
Q. ...that you’re trying to tell us now today?
A. No, it wasn’t my intention to omit any, any, any, anything in the sentence.
Q. Well you’re absolutely clear in the sentence that starts as the vehicle continued to roll and in the sentence that follows during the airborne stage that your position on December 5th, 2012 was that the occupants would be leaning leftward, right?
A. Initially, yes.
Q. Okay, it’s clearly stated here in your opinion, what you just demonstrated with your hand was now what you’re telling us is when you said in that report that they’d move upward and outward, you just demonstrated to say that what you meant by that was the passenger would move to the right and the driver would move to the left, right?
A. Yes.
Q. Okay, but your report in fact doesn’t say that, does it, sir? Your report says that the occupants would tend to move upward and outward with the left side of the vehicle away from the centre of mass, right sir?
A. Outward, a bit of confusion here is with the left side of the vehicle, that’s the confusion in the sentence.
In addressing the research in support of Dr. Garcia’s opinion as outlined in his report, the following exchange occurred:
Q. Well let’s look at what you were relying on when you prepared that chart. That chart is sourced, Howard RP, Hatsel CP(ph), Radden JM(ph), initial occupant kinematics in the high velocity vehicle rollover, right?
A. Yes.
Q. And if you turn over the page there’s a Figure 7 which is a centre of rotation wheel, right?
A. Yes.
Q. And then there’s a Figure 8, right?
A. Yes.
Q. And that Figure 8 isn’t in your chart,...
A. No.
Q. ...is it, sir?
A. I didn’t use it in the – to prepare the report.
Q. You didn’t use it in the report because it didn’t support what you said in the report that everybody would be leaning to the left until the vehicle hit the ground, right?
A. No, I didn’t use it because I didn’t consider that it was necessary to include it there.
THE COURT: I am sorry, what did you say, sir?
A. I didn’t use it because I considered that it wasn’t necessary to include it in the report.
MS DONNELLY: Q. You considered it wasn’t necessary to...
A. Yeah.
Q. ...include it in the report. Turn to Page 13, please.
A. And actually if you give me just a second. Figure 8, Figure 8 shows a similar, Figure 8 is in the article on Page 12 shows a similar position of the occupant against the right side as shown, which is Figure 4 in our report is similar to Figure 10 in the article on Page 13. If you look at those two figures, they illustrate the position of the passenger, or the occupant against the right side of the vehicle, so the figures are showing the similar position. And I – we considered that it wasn’t necessary to repeat, it’s like repeating the same figure.
Q. Okay. So this article, upon which you rely to support your position, contained Figure 5 in the article, which is your Figure 1, which you included, right?
A. Yes.
Q. Figure – the article’s Figure 6, which is your Figure 2, right?
A. Yes.
Q. You omitted putting in Figure Number 7 from your report, right? From the article into your report, right?
A. I’m not using the entire – I’m just citing parts of the article, I don’t have to include all the figures that are in the article in my report. I include what – we include what we consider that it will illustrate our explanation in this case, but we don’t have to take all the content of the article and include it in the report.
Q. I’m talking about the figures, sir, I’m not sure if you misunderstood me. I wasn’t talking about the content of the article.
A. Yeah, but you are, you are suggesting that I omitted – yes, I omitted Figure 7.
Q. Okay.
A. I omitted it because it wasn’t necessary. We considered it wasn’t necessary to include it in the report for the purposes of the analysis we were conducting.
Q. So let me see if I understand this; you’re hired to perform an independent forensic engineering assessment with respect to a motor vehicle accident that happened on May the 10th, 2009, right?
A. Yes.
Q. You prepare a report at Page 5, dated December 5th, 2012, that says that the occupants of the vehicle would remain leftward until the passenger side hit the ground, right?
A. We have discussed about that already.
Q. Sir, could you answer my question, please?
A. We have discussed that already and I have explained the - what we wrote in the report and what is the meaning of the paragraph that we wrote in the report.
Q. Would you please answer my question?
A. Can you repeat your question, please?
A. In your report, you said that the left side – the occupants of the vehicle would remain left leaning until the passenger side hit the ground, correct?
A. I didn’t - I don’t – I didn’t say that...
Q. Okay,
A. ...until the passenger side hit the ground. I said until the roll rate diminished.
Q. Or ie: when the passenger’s side first contacted the ground?
A. Until the...
Q. Right sir?
A. ...roll rate diminished to a level permitting gravity and, or acceleration. Or acceleration, I was going to say and acceleration produced, by the ground forces when the passenger side first hit the ground, contacted the ground to overcome the leftward directed forces. So I am saying when they will remain on the left or the centre until the roll rate diminished or the acceleration produced to a level permitting gravity, or acceleration produced by external ground contact forces to overcome the leftward directed forces. I’m not saying until the right front passenger – the passenger’s side hits the ground. It’s not reading like that in the report.
Q. Nowhere....
A. No, I’m saying, I’m not saying that in the report.
Q. Nowhere on Page 5 do you refer to the passenger going back to the right side, correct sir?
A. Not in those terms, I’m referring to the occupants moving upward and outward with the left side of the vehicle away from the vehicle’s centre of gravity.
Q. Nowhere do you say – use the word that the passenger goes to the right side in that paragraph, correct sir?
A. It’s not written with those words in the report.
Q. And of the one – you told us that you did not put in, from the article, Figure 8, right?
A. Uh....
Q. It’s not in your report?
A. No, because we wanted to show the occupant kinematics and Figure 8 is similar to the position of the occupant, and Figure 8 is similar to the position of the occupant in Figure 10, which is the one we included in the report.
Q. But Figure 10 occurs in sequence after the vehicle has struck the ground, correct sir?
A. I understand that. I understand your point. That if we go by the sequence in the figure, in the article, Figure 10 will correspond to the position of the occupant after the passenger’s side hits the ground. Maybe the correct figure to include and show that Figure 4 in our report would have been Figure 8, cause this is the one that describes the motion of the occupant before the passenger’s side hits the ground. That’s probably the – what should have been done. Use the proper figures according to the sequence, cause the purpose of the figure was to show the movement of the occupant immediately before the contact between the passenger side and the ground.
In clarifying the various scenarios for the likely ejection of the driver, the following exchange between Crown counsel and Dr. Garcia occurred:
Q. But my question to you is, didn’t you tell Mr. Reid when he was asking you questions that it was – it is likely that the driver couldn’t, could not, be ejected after E, didn’t you tell him that?
A. I remember he asked the question, I answered, I asked him to, I think I asked him to repeat the question cause I wasn’t sure about the question, then he asked me in another, used another wording for the question, what is the likely point of ejection, then I explained. That’s what I remember that I said.
Q. So is your evidence then, is your answer to my question, which I’ll ask for the third time.
A. Okay.
Q. My question is, did you tell Mr. Reid when he was asking you questions, in relation to the scenario where both windows were up, that it was unlikely that the driver – sorry, did you tell Mr. Reid that it was likely that the driver could not be ejected after E? Did you....
A. If that – sorry.
Q. Did you tell him that?
A. If that was my answer, it is not a correct answer. If that was my answer that was, is not a correct answer. I do remember that I asked Mr. Reid to repeat the question and then he asked me what are the likely ejection points had both windows been up.
A. …It’s not. If I said it couldn’t, if I said that after B, the driver could not be ejected, that’s not the correct answer and then I remember, I repeat again, that Mr. Reid asked me what is the likely ejection points and then he asked me again what are the likely – he asked me again what are the likely ejection points had both windows been up, then I said the likely ejection point would be after B. Then he asked what about if the driver’s side window was down and then I said in that case there would be two possible areas of ejection between B and C and after E. That’s my recollection of...
Q. And if I....
A. ...the way that Mr. Reid rephrased his question to me.
Q. And if I understand your evidence today, your evidence is that if the window in the vehicle was down at the outset of the tripping stage, that the driver would have been ejected early on in the roll process, right sir?
A. If the driver’s side window was down, yes.
Q. And in your report dated December the 5th, 2012.
A. Okay.
Q. You said at Page 7 the roadway evidence, ie: Mr. Holloway’s and Ms LaPlante’s final resting position, that was in a bracket that part, and I’m going to continue reading now.
A. Yes.
Q. Indicates that neither occupant was ejected during the early stages of the rollover sequence, ie: between the point where the passenger’s side of the Lincoln first struck the ground after the initial tripping and the point where the driver’s side impacted the ground to create the gouge identified as E, driver’s side, in the scale diagram, right?
A. Yes.
Q. And your evidence, your position at that time in that report was that there was no early ejection of the driver, correct sir?
A. Yep, because both windows were up. When we prepared the report the information we had was that the windows were shattered at the end of the rollover when the police examined the vehicle, both the driver’s side window and the passenger, the right front passenger window were shattered, but there was no information on whether or not any of those windows was open when the rollover commenced.
Q. You’re repeating....
A. So the opinion that we expressed in our report that they – neither occupant was ejected was based on the fact that both windows were up between the point of initial tripping, at the point of initial tripping therefore there was no ejection, ejection portal for the driver.
Q. So the answer to my question is yes, that’s what the position was at that time, correct sir?
A. Yes, because it was based on the fact that both windows were closed.
Q. In addition, Ms LaPlante’s ejection would have occurred towards the end of the rollover when the driver is more vulnerable to be ejected. That’s what your report says, correct sir?
A. Yes, report that was prepared on the basis that both windows were up at the beginning of the rollover.
Q. And Page 13 in that report, sir?
A. Okay.
Q. Second paragraph, this further supports our opinion that Ms LaPlante would have been ejected from the left side of the Lincoln towards the end of the rollover sequence after the driver’s side of the Lincoln impacted the ground immediately prior to coming to rest. You’ll agree with me, sir, that that’s what your report says, right?
A. Yes, that’s what my report said after the driver’s side impacted the ground immediately prior to coming to rest, that’s gouge E.
Q. And that was your position on December 5th, 2012, right?
A. Yes.
Q. And in coming to that opinion, was four times that I’ve read to you, you’ve repeatedly said in your report that she didn’t – the driver, or you refer to her not as the driver but as Ms LaPlante, that she came out at the end of the roll sequence, right?
A. Yes.
Q. And your evidence now is is that the driver could have come out at the beginning of the roll sequence, right sir?
A. Yes, because that was the most recent information I received that the – two days ago that the right driver’s window was down. When I prepared this report on December 5th the information we had was that both windows were up, nobody had mentioned to us before that the driver’s side window was down at any point...
Dr. Garcia’s reliance on the status of the vehicle’s windows at the time of driving in formulating his opinion was canvassed.
Q. Thank you. And essentially what you’re telling us today is the state of the windows was a, is a key factor for your opinion, right sir?
A. When we are dealing with an ejection the state of the window is important.
Q. Because that could change your opinion, right sir?
A. Yes.
Q. And you told us at the outset that you understood the importance of being thorough, right sir?
A. Yes.
Q. And you’ll agree with me that in this section where the bullet points are that we’ve just reviewed where you talk about damage to the vehicle, you talk about the tires, that airbag, tire marks, running shoes, driver’s side mirror, the police scale diagram, nowhere do you refer in that report to windows or the state of the windows being an important point, do you sir?
A. I didn’t list that in the, in the report, no.
Q. You didn’t what?
A. I didn’t list that in the most relevant points in the report.
Q. So, when you were being accurate and complete in your report this is an area where you were incomplete and missed a very, very important point, right sir?
A. Yes, it’s not in the report.
Q. And under field notes, you then went from the TTCI report to you looked at the field notes, right sir?
A. Yes.
Q. And in the field notes, it says the most relevant points in the investigating officer’s notes are as follows, bullet point number one: front passenger in veh, V-E-H. [vehicle] ejected out door window. You’ll agree with me that you found that to be a relevant point in the investigating officer’s notes, right sir?
A. Yes.
Q. And you found it relevant to put in there as bullet number two that there was blood on the front passenger seat and driver’s air bag, blood along the interior door panel, the pass, the passenger door, right sir?
A. Yes.
Q. And from the field notes, vehicle shifted to driver’s side, occupants’ momentum shifting to pass, passenger side of vehicle, right?
A. Yes. Yes.
Q. Another point that you summarized as being important from the field notes into your report, right sir?
A. Yes.
Q. And in all – you tell us today that you had information from the police that the windows were shattered, right sir?
A. Yes.
Q. But nowhere in your report does it say anything about that in this report, does it sir?
A. No. Not in this report.
Q. So, your whole report, you did a report that we talked about at the outset, a 15 page report about relating to and providing an opinion about the ejection of a person and nowhere do you even consider whether or not you ought to check to see whether the windows were open, or the windows were down?
A. I assumed that the windows were closed. I assumed the windows were closed and the analysis of the likely vehicle dynamics and the likely occupant kinematics was based on the police scale diagram showing the gouges and the final resting position of the vehicle and Ms LaPlante.
Q. Your whole – we already went over four times in this report your opinion is that Ms LaPlante was ejected out of the driver’s side window as the vehicle came to its final resting stage, right sir?
A. Yeah, after, after the driver’s side hit the ground and created a portal for the driver to be ejected.
Dr. Garcia was challenged extensively about his analysis and conclusions.
Q. And at no point did you say that what you’re saying today, that the driver would have come out between B and C, right?
A. That’s correct.
Q. And similarly, in nowhere in your report, dated December 5th, 2012, your 15 page report, do you say anything about occupant kinematics that would result in Mr., or the remaining person, Mr. Holloway’s body being moved up from the passenger’s side and somehow pushed over and deposited into the driver’s side,...
A. No.
Q. ...right sir?
A. Yes.
Q. So for the first time, notwithstanding that you’ve created two different reports, today is the first time that you provide any opinion about how Mr. Holloway could’ve ended up in the driver’s seat as he was found, right sir?
A. Yes, because I was asked.
Q. Because you were asked?
A. Yes. I was asked to answer that question.
Q. So to get an independent engineering assessment out of you, we have to ask you specific questions for you to provide your assessment?
A. I’m talking about my testimony today.
Q. Your report, December 5th, 2012 says, Page 2, Walters, paragraph 2, Walters Forensic Engineering Inc. was retained to conduct an independent engineering assessment of this matter, in particular we were asked to respond to a report prepared by Mr. John Mustard, the Mustard Report, dated September 18th, 2012, right?
A. Yes, that was the purpose of this report to respond to that report and in that Mr. Mustard’s report dealt with vehicle dynamics, the occupant kinematics and didn’t, Mr. Mustard’s report, Mr Mustard’s report described the vehicle dynamics, described the occupant kinematics without dealing with the likely position of Mr. Holloway was found inside the vehicle, so they, that report was just intended to respond to the issues dealt with in Mr. Mustard’s report.
Q. And notwithstanding that you say it was prepared just to respond to Mr. Mustard’s report, you make repeated opinions about the ejection of the driver after the final stages of rest, after E, right sir?
A. Yes.
Q. And that was nowhere in Mr. Mustard’s report, right?
A. No.
Q. And you’ll agree with me – and your scenario that you gave us in your evidence today about the location of, or the movement of the driver, you’ll agree with me, sir, that with respect to occupant kinematics in a motor vehicle, the upper body leads the response and the lower body lags behind due to seat friction and lower extremity drag, right sir?
A. Yes. Yes.
Q. So your scenario would have to overcome the lower, the seat friction in the lower body drag. On your scenario, they would have to somehow turn around Mr. Holloway, they would have to take him over the centre console, they would have to put his, somehow get his legs underneath whatever remained of the airbag and also get him all underneath this steering wheel, right sir?
A. It’s difficult for me to predict the occupant kinematics in that detail; that level of detail.
Q. But your scenario calls for that to happen, right sir?
A. Likely to happen, yes.
Q. So you prepared this December 19th report into the May 10th, 2009 collision and the report was to focus on vehicle rollover dynamics and occupants’ kinematics, but you didn’t think it was important to include your opinion on how Mr. Holloway could get into the driver’s seat if he was in the passenger’s seat. Is that right, sir?
A. We didn’t include that analysis in the report. That doesn’t mean that he wasn’t, it’s important, it’s not important, but yes, it wasn’t included in the reports we prepared.
Q. Okay. And in this report you maintain the same position that you took in the last report and that is in your opinion the driver would have been ejected in the later stages of the roll and that is after the vehicle impacted at E, right sir?
A. Yes.
Dr. Garcia was questioned about the scope of his review of documents or other materials:
Q. And in that report about vehicle dynamics and occupant kinematics, at Page 8 of the report.
A. Yes.
Q. You do a statement analysis at the bottom of the page, right? Bottom of the page; police information and witness evidence?
A. Yes.
Q. And at Page 4, 3 over to Page 9, you summarize some witness statements, right sir?
A. Yes.
Q. And you conclude the top of page nine, the middle, or the last couple sentences, the information reportedly provided by these witnesses did not in any way suggest or indicate they saw the occupants in the Lincoln, ie: Mrs. LaPlante in the driver’s seat and Mr. Holloway in the front passenger seat, or vice versa. In addition, none of these witnesses appeared to have provided information on whether or not they observed Ms LaPlante being ejected, ie: time and point of ejection, right sir?
A. Yes.
Q. And that paragraph is beyond your realm of expertise as a forensic engineer, right sir?
A. This paragraph is only requires to read the witness statements and the information provided by the police officer and see what the witness says and compared to what the police officer is referring to.
Q. And how does that fit into an independent engineering assessment with respect to rollover, vehicle dynamics in a rollover and occupant kinematics in a vehicle?
A. It doesn’t relate.
Position of the parties:
97The Crown submits that the civilian witnesses were all credible and their evidence is reliable. The crown witnesses had no motive to fabricate as they did not know any of the parties. Ms. Donnelly submits that Ms. Nesbitt and Mr. Cook’s observations were detailed, fair and ought to be accepted.
98The Crown submits that Mr. Holloway’s admission to Mr. Lynch and Constable Van Essen was the truth and that Mr. Holloway later fabricated a self-serving version suggestive of Ms. Laplante being the driver. Mr. Holloway was positioned in the driver seat area with his feet in the driver foot well. Ms. Biesinger, a credible witness, did not see Mr. Holloway’s feet. The evidence of Mr. Lynch and the police officers ought to be accepted.
99Ms. Donnelly submits that the forensic evidence points to Mr. Holloway being the driver of the vehicle. Mr. Mustard’s expert evidence ought to be preferred over that of Dr. Garcia. Dr. Garcia was not an objective expert and had conducted himself as an advocate. In any event, it is submitted that Dr. Garcia’s testimony was impeached in cross-examination and his entire opinion and conclusions ought to be rejected.
100Mr. Reid, on behalf of the defendant submits that the observations of the Crown witnesses were not reliable as there was a considerable distance between their position and the event coupled with various obstructions in their line of sight. The defence submits that their evidence is unreliable about what they saw, if anything, come out of the vehicle. Mr. Cook’s evidence ought to be treated with caution given that he omitted salient points from his initial statement to the police. It is submitted that Mr. Cook was trying to fill in the gaps in his testimony and he was dramatic. Ms. Nesbitt’s evidence suffered from various inconsistencies.
101The defence submits that Ms. Biesinger accurately described Mr. Holloway’s position as being situated in the passenger seat with his legs in the driver’s seat area. It is submitted that Mr. Holloway was flung to the driver’s seat area by the powerful centrifugal forces and the various vehicle impacts. Ms. Biesinger had the best opportunity to observe Mr. Holloway’s positioning and she described Mr. Holloway’s legs and feet as being in the area and not in or near the driver’s foot well area.
102Mr. Reid asks the court to accept Mr. Holloway’s utterances to Ms. Biesinger and Mr. Lynch to the effect that Ms. Laplante was the driver. Although, counsel concedes that it is difficult to reconcile those utterances with the early statement introduced by the testimony of Mr. Lynch. Mr. Reid submits that, at the time, Mr. Holloway had no motive or reason to fabricate.
103Mr. Reid submits that the recovery and analysis of the evidence at the scene is unreliable as the vehicle interior contents and occupants had been violently disturbed by the rotational forces of the vehicle and the various impacts. Therefore, the defence argues that caution should be exercised with respect to the observations of the police officers and Constable Blackwood’s analysis of the entire scene.
104Mr. Reid submits that the evidence points to the fact that the driver’s side window was down and that was the first available and open portal which allowed Ms. Laplante to be ejected from the driver’s seat. It is submitted that she was ejected before ”C” as her eventual place of rest suggests that she was ejected from the driver’s side early in the vehicle’s rotation. Mr. Holloway’s position is consistent with him being situated as the passenger.
105Mr. Reid submits that the court can rely on Dr. Garcia’s report and testimony. Dr. Garcia responded to Mr. Mustard’s report and the key points between the experts were not at variance. While Dr. Garcia may have had some testimonial difficulties, it is submitted that his central points and opinion ought to be accepted as his evidence was logical. In any event, the Crown has not proven the identity of the driver of the vehicle beyond a reasonable doubt.
Analysis
106It is against this background that I now turn to the specific evidence and the analytical principles that I am required to apply in determining who was the driver of the motor vehicle in question and whether Mr. Holloway is guilty or not guilty of the charge he faces.
107All of the evidence must be considered in determining whether the Crown has made out the charges beyond a reasonable doubt. In this case, Mr. Holloway is entitled to the benefit of the presumption of innocence and is not required to give any evidence. The defence was not required to prove that the offences occurred as alleged by the Crown and in the manner proposed by the prosecution. It is for Crown counsel to prove beyond a reasonable doubt that Mr. Holloway was the driver and that he committed the offences as specified in the indictment.
108If the evidence of the crown witnesses is accepted, I am required to determine that the events described, coupled with the admissions, would establish the presence of all of the required legal and factual elements of the charges against Mr. Holloway. Both the Crown and the accused focused on this as a case concerned principally with credibility and the internal and external consistency, and reliability of the evidence advanced by all of the witnesses, including the experts’ testimony. It is certainly true that credibility and reliability of evidence is central to the case. However, to establish whether findings of credibility are effectively dispositive of the matter, the Court cannot lose sight of the legal components on the issue of identification and the essential elements that the Crown must prove beyond a reasonable doubt before Mr. Holloway can be convicted of the charge.
Reasonable Doubt
109The Supreme Court of Canada has commented on the principle of proof beyond a reasonable doubt in several cases.6 Later on in the Lifchus case the Supreme Court explained that the meeting of proof beyond a reasonable doubt is "[a] standard of proof is higher than… a balance of probabilities, yet less than proved with absolute certainty".
110The law provides for no burden of proof on the defendant at any stage in the proceedings. The standard of proof in a criminal matter is the higher standard of proof; namely, beyond a reasonable doubt. Absolute certainty is not required, for that would be an impossibly high standard for the prosecution to achieve. However, it does demand considerably more than probable guilt. A conclusion of probable or likely guilt requires that an acquittal be entered. Further, reasonable doubt cannot be based on sympathy or prejudice, but must be founded in reason and common sense and be logically connected to the evidence or the absence of evidence.
111In R. v. Starr (2000), 2000 SCC 40, 147 CCC 3d 449, and its prodigy, the Supreme Court indicated that in order to convict, something less than absolute certainty and something more than probable guilt is required. The Court further defined the reasonable doubt standard by explaining that it falls much closer to absolute certainty than to proof on a balance of probabilities in trials where the evidence pits competing versions of events and the result turns on the trial judge's credibility assessments. It is clear that the trial judge must apply the same standards in assessing the evidence of every witness including the experts who testified in this trial.
112In this case, the factual determination with respect to the identification of the driver of the vehicle requires a careful analysis of all of the evidence.
Assessing credibility
113In this case, while the principles of R. v. W.(D.) may not be specifically engaged, I am still mindful of the requirement that having regard to the whole of the evidence presented at trial and on the basis of the evidence that I do accept, whether I am convinced beyond a reasonable doubt of the guilt of the defendant.
114Time and time again the Supreme Court of Canada and the Ontario Court of Appeal have made it clear that the Court's verdict should not be based on a choice between the evidence raised by the defendant and the Crown’s evidence, but on whether, based on the whole of the evidence, the Court is left with a reasonable doubt as to the accused’s guilt.7 It must be made indisputably clear that reaching a verdict is not simply a question of choosing the more believable of the two competing stories. That proposition must also be considered where, as in this case, we have competing expert opinions.
115The assessment of credibility is often the primary and the most daunting task that the trier of fact faces in a criminal trial, involving determinations of the truthfulness of witnesses and an assessment of their reliability.8 It requires a determination of whether their recollections are accurate regardless of the sincerity of their beliefs. However, reliability must also be considered.
116Ultimately, there are no fixed rules to which the Court can look to guide it in its assessment of the credibility of the Crown’s witnesses in this case, be they adults or children, and its assessment of the credibility of the accused, but a number of elements may be considered. These include the perceptions of the witnesses, their memory, how reliably and accurately do they recall the events, the manner in which the witnesses’ perceptions have been communicated to the Court, and whether the information has been presented in a sincere, complete and truthful manner. The Court will look to the witnesses and assess whether they are being sincere and frank or biased, honest or careless with the truth, reticent or evasive in the evidence that they have provided to the Court. These, and other factors, when combined, are what we describe as “credibility”.
117Inconsistencies in the evidence of witnesses on relatively minor matters or matters of detail are, of course, normal. They are to be expected. Indeed, I would observe that the absence of such inconsistencies may be of even greater concern, for it may suggest collusion between witnesses in their evidence or fabrication or excessive rehearsal and regurgitation of a set story. However, where an inconsistency of a witness involves a material matter central to the elements of the alleged offences and about which common sense dictates that an honest witness is unlikely to be mistaken, the inconsistency can demonstrate carelessness with the truth that may undermine the whole of a witness’ evidence.
118At the end of the day, the best approach to the assessment of credibility is for me to ask myself as trier the same questions that we admonish juries to ask when we ask them to assess the credibility of witnesses, the reliability of witnesses, and to determine the truth. I have asked those questions and applied those principles in determining the credibility of all of the witnesses in this case.
Application to the facts of this case
119I have taken into account the whole of the evidence when making these assessments, although I have not recounted all of that evidence in the course of undertaking that analysis in these reasons – I have instead drawn attention to that evidence and to those particular instances that form the central foundations for my findings.
120It is self-evident that the single motor vehicle collision resulted in the death of Ms. Laplante.
121While the defence concedes that the substantive offences have been made out, it is still incumbent on me to address, in a rather perfunctory manner, whether I am satisfied beyond a reasonable doubt that the constituent elements have been established.
122In the leading cases of R. v. Waite, 1989 104 (SCC), [1989] 1 S.C.R. 1436, and R. v. Tutton, 1989 103 (SCC), [1989] 1 S.C.R. 1392, the Supreme Court addressed the constituent elements of criminal negligence. In R v Sharpe, (1984), 1984 3487 (ON CA), 12 C.C.C. (3d) 428, the Ontario Court of Appeal defined criminal negligence in the operation of a motor vehicle. Various other appellate decisions have provided guidance to trial judges with respect to the requisite actus reus and mens rea elements for criminal negligence in the operation of a motor vehicle.9
123I have considered the jurisprudence and the evidence in this case as it applies to the elements of the substantive charges.10 Should Mr. Holloway be found to be the driver of the automobile, based on the admissions and the evidence adduced at trial, I am satisfied that there was a wanton and reckless disregard for the life and safety of others in the manner of driving of this vehicle on the evening in question.
124Should Mr. Holloway be found to be the driver of the vehicle, I am satisfied from the evidence that his blood alcohol concentration of 151 to 236 milligrams11 of alcohol in 100 mL of blood at the time of driving is over 80 milligrams of alcohol in 100 mL of blood. I accept Ms. Rachelle Wallage’s expert opinion that at that level of blood alcohol concentration, an individual would be impaired in their ability to operate a motor vehicle.
125In my view, all of the civilian witnesses testified in a forthright, balanced and candid manner. These witnesses neither knew Mr. Holloway nor Ms. Laplante and they had no motive to fabricate. I find that that Ms. Nesbitt and Mr. Cook’s evidence to be credible and reliable to the extent that they made their respective observations during the rapid and evolving nature of these events. I accept Mr. Cook’s evidence as to what he saw as the vehicle crested the intersection and what he observed coming out of the passenger side window during the rollover.
126Ms. Biesinger was a credible witness and I accept her testimony. I am satisfied that what she observed of Mr. Holloway was based on her limited involvement and that she did not have a clear or prolonged view of the driver’s seat or foot well area. In any event, I am persuaded that her testimony is not in contradiction to that of Mr. Lynch or Constable Van Essen.
127I find that Mr. Lynch was a credible and trustworthy witness. Clearly his focus was on the health and well-being of Mr. Holloway who had sustained life-threatening injuries.
128I find that Constable Van Essen was an accurate historian including what he observed and heard from Mr. Holloway. I accept his evidence of his observations of Mr. Holloway’s position in the vehicle as he found him.
129I accept the evidence of Constable Blacklock. She testified in a straight-forward and objective manner and her assumptions were well-reasoned. Constable Blacklock’s measurements and diagram of the scene were not effectively challenged by the defence. The results of her efforts were adopted by both experts in arriving at their respective opinions. While I did not specifically rely on Constable Blacklock’s opinion of occupant kinematics or placement, I accept her analysis and I find that her opinion is supported by Mr. Mustard.
130I reject Dr. Garcia’s opinion evidence. Dr. Garcia was effectively impeached by crown counsel in what could only be described as a textbook cross-examination. I am convinced that, at times, Dr. Garcia based his opinion on speculation and unsupported facts.
131Nowhere in Dr. Garcia’s initial reports was there any reference to the driver’s side window being down. The only evidence on point was from Cst. Blacklock and she testified that there were glass fragments in the passenger side area. She testified that if the driver’s window was shattered she would have expected to see dicing or glass fragments on the driver’s side. However, I accept Cst. Blacklock’s testimony that she could not opine either way on the status of the window. In my opinion, this evidence is speculative.
132It appears that the first time Dr. Garcia ever referred to the driver’s side window being opened was in court. While an expert is entitled to consider the evidence as it evolves during a trial, this factor seemed to be predominant in Dr. Garcia’s testimony notwithstanding that he had opined in his reports that Ms. Laplante was the driver, having been ejected from the driver’s side at “E”. He never even considered the driver’s side window being open in any report. It seemed to me that Dr. Garcia’s reliance on the driver’s side window being opened was an afterthought. Moreover, based on the Mohan principles, I reject the notion that the driver’s side window was down during driving and thus, the foundation for this part of Dr. Garcia’s opinion must fail.
133More importantly, Dr. Garcia was effectively challenged with respect to his analysis in his initial report and references to his foundational authorities.
134As I have already referenced earlier in these reasons, when Dr. Garcia was asked to read out verbatim his report in cross-examination, he omitted an important reference to a crucial part of his own report. I am perplexed when Dr. Garcia failed to accurately refer to what was clearly a sequential diagram from a report which he adopted as authoritative, namely, “Initial Occupant Kinematics in the High Velocity Vehicle Rollover” by Howard, Hassell and Raden. Dr. Garcia provided a series of diagrams in support of his conclusion, however the third diagram in sequence was markedly omitted from his report although that is clearly shown in the authoritative document.
135I reject Dr. Garcia’s rationale to the effect that it was not necessary to “repeat” it in the report, given that it was included at the end of the segment of diagrams and because it was repeated in figure #10. I am persuaded that Dr. Garcia omitted this diagram from his report because it clearly did not substantiate his theory. In my view, Dr. Garcia’s testimony and omission clearly goes to the lack of objectivity of this witness in referring to the forces on an individual in a rollover.
136I do not accept Dr. Garcia’s opinion that the driver was ejected between “B” and “C”. I find that Dr. Garcia grappled and twisting the facts in order to support his conclusions. I reject Dr. Garcia’s cursory dismissal of his opinion that “the passenger” (Mr. Holloway) who ended up being across the seat with his feet in the driver’s foot well did not make any difference to this expert’s initial opinion and was consistent with his view about the driver being ejected. I reject his conclusion that somehow the passenger ended up in the driver’s seat with feet in the foot well after the driver had gone out through the driver’s window. As well, I reject any notion that the driver could have gone out through the passenger window before the passenger went out first.
137Even if I am wrong with respect to the state of the driver’s side window or Mr. Holloway’s position in the vehicle, I reject Dr. Garcia’s conclusions as I find that they are incompatible with logic and common sense. I do not accept the scenario that the driver (Ms. Laplante) came out between “B” and “C” while Dr. Garcia admitted that the trip at “B” was minor and that the significant impact was at “C” when the passenger side hit the ground. Dr. Garcia also vacillated in that he opined that perhaps the driver went out at “E”, at a time when the rotational forces of the vehicle had diminished considerably.
138In my view, Dr. Garcia could not reasonably explain as to Mr. Holloway’s eventual position in the vehicle and how that could fall within the parameters of his opinion. I find that his evidence could only support the notion that Mr. Holloway was in the driver seat.
139Dr. Garcia was evasive in cross-examination and was unresponsive and hesitant in responding to crown counsel’s questions.12 He considered irrelevant factors in arriving at his conclusions. In my view, Dr. Garcia acted as an advocate.
140I accept, without reservation, Mr. Mustard’s opinion, analysis and conclusions. Mr. Mustard’s testimony was credible, objective, and fair. He conceded points when necessary. Notwithstanding Mr. Reid’s efforts, I find that Mr. Mustard was not effectively challenged in cross-examination. Mr. Mustard did not overstate his opinion and he relied on evidence that I find has been established on the evidence that I have accepted.
141While Mr. Reid points out to various segments of the evidence which individually may not sustain proof of the identity of the driver. While competing inferences may be drawn from individual pieces of evidence, I am required to consider the totality of all of the evidence that I do accept in order to determine whether the Crown has met its onus beyond a reasonable doubt.
142It is incumbent on me not to rely solely on the testimony of expert witnesses. Aside from my acceptance of the Crown’s expert witnesses’ forensic opinions, I find that there is direct and circumstantial evidence to lead me to find that Mr. Holloway was the driver of the vehicle in question.13 On the issue of the identity of the occupants and their respective positions in the vehicle, I accept the following evidence in support of my conclusion:
i. Ms. Nesbitt testified that she saw something fly out of the passenger side of the motor vehicle.
ii. Mr. Cook testified that he saw an individual with long hair situated in the passenger seat as the vehicle passed before them when reaching the middle of the intersection.
iii. Ms. Laplante had long hair. Mr. Holloway does not.
iv. Mr. Cook testified that he saw something looking like a red green and black sweater fly out of the passenger side window of the vehicle as it rolled.
v. Ms. Laplante was wearing green or brown pants and had a red and black coloured jacket.
vi. Mr. Holloway’s DNA is found on the driver’s side airbag. There was no DNA from blood found on the passenger side airbag.
vii. Mr. Holloway’s admission to Mr. Lynch and Constable Van Essen that he was the driver of the vehicle. I reject his self-serving statement to Ms. Biesinger and Mr. Lynch to the effect that Louise Laplante was driving the vehicle.
viii. Mr. Holloway’s ultimate resting position in the vehicle with his upper torso and head in the passenger seat; his seat in the driver’s area, his hips twisted over the centre console; his legs towards the driver’s door, and his feet in the driver’s foot well area.
ix. Mr. Holloway’s size 9 black court shoe was located in the driver foot well area near the brake pedal.
143I accept the following circumstantial evidence but their significance in my overall determination is of a lesser degree;
Ms. Laplante’s personal effects were in the passenger seat area and the passenger floor.14
The vehicle was owned and licenced to Mr. Holloway.
144I am unable to draw any reasonable inferences and conclusions about the positioning of the occupants arising from the blood smear found on the passenger seat. There was no expert testimony about blood transfer on the passenger seat or an opinion as to its directionality. I am not satisfied by the existence of the blood smear to support the argument that Mr. Holloway was in the passenger seat at the time of driving. The blood on the seat is equally consistent with Mr. Holloway being face down in that area after having been violently displaced from the driver’s seat. The smear may have resulted from Mr. Holloway being extricated from the vehicle through the passenger door.
145I am not persuaded that the driver’s side window was down prior to the mishap. I find that any evidence in support of this argument is speculative. Given the violent nature of the vehicle’s rotation and the impacts with the ground, there are other reasonable inferences that can be drawn as to why there was no dicing of the window on the driver’s seat. Both Mr. Cook and Ms. Nesbit testified that the passenger side window was up. Given the cool evening temperatures and the high rate of speed of travel, it is reasonable to infer that both windows in the vehicle were up at the time of driving.
146Not only am I satisfied that Mr. Mustard’s evidence is to be preferred but it seems to me to be entirely consistent with logic and common sense when one considers the dynamics and effect of a violent roll-over collision on the occupants as evidenced in the circumstances of this case.
Conclusion
147Based on the totality of the evidence, I am satisfied beyond a reasonable doubt that Mr. Holloway was the driver of the motor vehicle which was involved in the single vehicle collision on May 10, 2009 on Hullett-McKillop road. Mr. Holloway’s level of impairment and his wanton and reckless disregard for the safety of others in driving his motor vehicle on the evening in question resulted in Ms. Laplante’s unfortunate death.
148Therefore, I find the defendant guilty of all counts in the indictment namely; criminal negligence causing death, dangerous driving causing death, impaired driving causing death and drive with over 80 mg of alcohol in 100 ML of blood causing death.
149Unless otherwise advised by Crown counsel, the charges of dangerous driving causing death and over 80 mg. in 100 ML of blood causing death will be stayed conditionally pursuant to the principle in R v. Kienapple, 1974 14 (SCC), [1975] 1 S.C.R. 729.
“Justice A.J. Goodman”
A.J. Goodman J.
Released: April 25, 2013
COURT FILE NO.:14-2010
DATE: 2013/04/25
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
STUART HOLLOWAY
REASONS FOR JUDGMENT
A.J. Goodman J.
Released: April 25, 2013
Footnotes
- The diagram was admitted into evidence and marked as exhibits 14 & 15. Exhibit 15 was referred to extensively by this witness and by both experts called by each of the parties.
- Exhibit 15 was revised to delineate the various references to “D” and were renamed “D1, D2, D3 & D4” respectively.
- There is no dispute about the accuracy of the scale diagram entered into evidence as Ex. 15. Various letters “A” to “HP” and other items in the legend all refer to Ex. 15.
- I allowed that this witness to speak to the issue of occupant kinematics. I do not rely on her conclusion occupant kinematics other than to provide the requisite foundation for the experts.
- Notwithstanding the line of questioning by counsel, this segment of her evidence is no longer a live issue. The measurements and the diagrams presented to the court were used to form the basis of the expert opinions presented by either side.
- R. v. Lifchus (1997), 118 CCC 3d 24. (Cory J.)
- See R. v. Challice (1979), 1979 2969 (ON CA), 45 C.C.C. (2d) 546 (Ont. C.A.); R. v. Morin (1988) 1988 8 (SCC), 44 C.C.C. (3d) 193 (SCC).
- R. v. L.F (2006), 1024 (Ont. S.C.J.).
- There are many reported cases. For example, see R. v. Anderson, 1990 128 (SCC), [1990] 1 S.C.R. 265; R. v. Fortier (1988), 1998 12917 (QC CA), 127 C.C.C. (3d) 217 (Que. C.A.); & R. v. R.(M). (2011), 2011 ONCA 190, 275 C.C.C. (3d) 45 (Ont. C.A.);
- As criminal negligence has been conceded by the defendant, it is not necessary to expand upon the legal principles for criminal negligence, or for that matter, dangerous driving.
- There were two samples analyzed as a result of a search warrant for the blood and related hospital records. The first sample provided a range of between 170 to 236 mg in 100 ml of blood, the latter provided a range of 151 to 215 mg in 100 ml of blood.
- While Dr. Garcia’s first language is Spanish, I do not find that he had any difficulty in understanding and expressing himself in English. It is not a factor in my assessment of his testimonial capabilities.
- I am mindful of the jurisprudence regarding the reliance upon circumstantial evidence to prove intent as discussed in the case of R. v. Rhee, 2001 SCC 71, [2001] 3 S.C.R. 364. The principles are instructive.
- I am cognizant that the effect of a violent roll-over may displace items inside the vehicle so that their ultimate position may not be indicative of their original placement.