File No. CR-11-00000157-0000
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
v.
MICHAEL ROGERS
REASONS FOR JUDGMENT
BEFORE the HONOURABLE JUSTICE C.A. GILMORE
on March 7, 2013, at NEWMARKET, Ontario
APPEARANCES:
D. Russell Counsel for the Crown
L. Riva Counsel for Michael Rogers
THURSDAY, MARCH 7, 2013
UPON RESUMING:
MR. RUSSELL: Good morning, Your Honour.
THE COURT: Morning.
MR. RUSSELL: I think everyone’s here.
THE COURT: Mr. Rogers, okay.
REASONS FOR JUDGMENT
GILMORE, J. (Orally):
These are my reasons for decision in relation to the charges against the accused before the court, Mr. Michael Rogers. This was a lengthy trial which took place in 2012, on June 12th and 13th, August 27 to 31st, October 16th to 19th, November 15th, December 10 and 11, and January 25th and 30th in 2013.
Mr. Rogers’ stands charged with one count of dangerous operation of a motor vehicle causing death to Christopher Sprecker and three counts of dangerous operation of a motor vehicle causing bodily harm in relation to Peter Campagna, David Yeoman and Robert McEachern.
The Crown must prove beyond a reasonable doubt that Mr. Rogers’ manner of driving was a marked departure from the standard of care that a reasonable person would have observed in the accused’s situation. Errors in judgment or carelessness are not sufficient to reach the threshold of criminal liability.
Crown alleges that while Mr. Rogers was driving his BMW southbound on Highway 12 on July 4th, 2010, he was distracted by receiving or sending a text, at which point his car drifted into the northbound lane striking Mr. Sprecker with the front driver’s side of his vehicle. He continued in the oncoming lane while other motorcycles in Mr. Sprecker’s group tried to avoid him and the other riders. Mr. Sprecker died from his injuries. The other injured motorcyclists suffered from serious road rash, broken limbs and torn ligaments. Some of the injuries continue to affect the day to day enjoyment of life of those victims.
The defence alleges that Mr. Rogers was driving normally. He was not texting or using his phone, although he had it with him. He was neither fatigued nor impaired. Either as a result of momentary inattention on the part of Mr. Rogers or an action on the part of one of the riders, Mr. Sprecker’s motorcycle came into contact with Mr. Rogers’ vehicle. The collision with Mr. Sprecker caused the other riders to swerve out of the way causing injuries to the riders and damage to the motorcycles. The defence submits that Mr. Rogers may not have crossed the centre line, but even if this court finds that he did, his driving was not a marked departure from the standard of care of a reasonable person in similar circumstances.
Background Facts:
On a sunny Canada Day weekend in July, 2010, a group of motorcyclists, who belonged to the Southern Cruisers Riding Club out of Barrie, planned a trip which would take them from Barrie to Fenelon Falls and then back to Barrie via Orillia. Nine riders were proceeding north on Highway 12 when tragedy struck. At approximately 3:20 p.m. on Sunday, July 4th, 2010, Mr. Rogers’ BMW collided with Mr. Sprecker’s motorcycle. Mr. Sprecker died from his injuries. The three other motorcyclists riding behind Mr. Sprecker were injured seriously. Highway 12 is a two-lane highway in the township of Ramara. The evidence was that July 4th, 2010 was a sunny, dry day. Because it was long weekend, the traffic on Highway 12 was moderate but constant. The accident occurred between the 7th and 8th Concessions of Ramara Township.
The motorcyclists were riding in what they described as a staggered pattern with Mr. Dan Labbe in position one, Mr. Claude Potvin in position two, Mr. Val Hyden in position three, Mr. Jeffrey Tress in position four, Mr. Chris Sprecker in position five, Mr. David Yeoman in position six, Mr. Peter Campagna in position seven, Mr. Robert McEachern in position eight, and Mr. Al Wyllie in position nine.
Mr. Rogers was driving a BMW 323I with three passengers and he was driving southbound.
As a result of the collision, Mr. Sprecker sustained severe injuries to the left side of his body including his chest and left leg. He died from hemorrhaging from the trauma related to his injuries shortly after arrival at the Orillia hospital. Mr. David Yeoman sustained severe road rash and was treated for his injuries at hospital. Mr. Yeoman’s evidence at trial was that he also suffered a bruised lung and damage to his collar bone. Mr. Peter Campagna suffered severe fractures to his left lower leg including the tibia, fibula and ankle. His evidence at trial was that he remained in hospital for 11 days after the accident. He has had extensive surgeries and now requires a cane and the use of a scooter at work. Mr. Al McEachern suffered separation of both of his shoulders, a chipped elbow, ligament damage to his knee and road rash.
After the accident, Mr. Rogers’ BMW was seized by police, as were the damaged motorcycles. Mr. Rogers’ BMW was examined by a qualified police mechanic who found no mechanical problems with the vehicle.
The two lanes on Highway 12 are divided by painted yellow lines. Each painted line is 10 centimetres wide with a 10 centimetre space between them. There were also 10 centimetre wide painted lines at the outer edge of each lane marking where the lane ended and the shoulder began.
The first person to call 911 was the witness, Mr. Ian Crapper. His call was received by the Orillia Fire Department at 3:21:50 p.m. The accident occurred shortly before this call.
Summary of the Crown evidence:
All of the motorcyclists were experienced riders, some with as many as 35 years riding experience. The Southern Cruisers Riding Club is a family oriented organization with chapters throughout the world. The group started their ride on July 4th, 2010 at 10:00 a.m. and drove to Fenelon Falls from Barrie. They arrived in Fenelon Falls at 12:30 p.m. and then returned to Barrie via Orillia on Highway 12. The posted speed limit was 80 kilometres an hour. The riders all testified they were doing the speed limit on a dry road which was in good condition.
All of the riders testified that they were riding in a staggered formation. This means that the motorcycles did not travel side by side, but rather in a staggered formation in the tire tracks. Tire tracks are the wear marks on the road from car tires. Travelling this way allows one to see better in front and allows reaction to debris or problems. The group’s practice was to stay one second behind the motorcycle in front of them in the opposite track, so that the angle of one rider to another in the track would be about 45 degrees. The riders gave differing evidence as to how many feet the riders were riding from the centre line or shoulder, depending on what position they were in in the pattern. Mr. Hyden said they were two feet away; Mr. Tress, one foot; Mr. Yeoman, three feet; Mr. Campagna, two to three feet; and Mr. McEachern, a couple of feet. In general, the riders agree the staggered pattern and riding in the tire tracks was the safest way to proceed in a group. It allowed them to see and react better to upcoming situations within the group or from the outside.
Each of the riders also gave evidence about the collision. Mr. Wyllie, being the last rider, did not see the collision. He only saw motorcycles heading off to the right and sliding down the road.
Mr. McEachern, in position eight, said he saw a vehicle crossing the line going south, and a bit less than half the vehicle crossed into the northbound lane. He saw the car hit two bikes, but he does not know which ones. He tried to stop, but had to swerve to avoid another bike and pieces of debris. He ended up in the ditch. Mr. Campagna, in position seven, said, in examination in-chief, that he saw a car coming over from the southbound lane. The bikes moved over to avoid it and he veered away as best as he could. In cross-examination he said the fender of the car was already two to three feet over the line when he first saw it. He saw the car make contact with another rider, whom he later found out was Mr. Sprecker, for a split second. He tried to veer away, but could not and the car struck his bike and leg. He said, at that point, 80 percent of the car was in the north bound lane.
Mr. Yeoman, in position six, did not see the collision. He saw Mr. Sprecker and his bike on the highway in front of him and attempted to avoid them, but could not. His bike went down and skidded until it stopped.
Mr. Jeffrey Tress, in position four, said he did not see the car actually cross the line. But by the time he saw it, the car was already 1.5 to 2 feet over the centre line and 4 to 5 feet away from him when it passed him. When he looked in his rearview mirror, he saw Mr. Sprecker’s bike in the air. He was able to pull his own bike over safely.
Mr. Hyden, in position three, testified he saw the car start to cross the centre line and Mr. Labbe began to move out of the way. By then the car was a few feet over the centre line and coming straight at him. The vehicle came extremely close to him, but did not hit him. He was able to make an evasive move. He was also able to see into the car and noted that the driver’s and passenger’s heads were looking down at the centre console. It looked like they may have been fiddling with a radio, but he could not be certain what they were doing. He was only able to see into the vehicle for less than a second, and was only able to see the back of the driver’s head and his left hand on the wheel.
Mr. Potvin, in position two, did not see much of what happened and only learned of the details after the accident. He did not testify at trial for medical reasons.
Mr. Labbe, in position one, testified he was riding three feet away from the segmented part of the centre line. He saw about five to six inches of the BMW come into his lane. He yelled and swerved to avoid the vehicle. He did not see the collision. He was able to stop safely and was not injured.
After the collision, there was a great deal of confusion. The collision had happened quickly and the injured riders needed help. Mr. Labbe was angry and blamed Mr. Rogers for what happened. He confronted Mr. Rogers and asked him why he had done it. He testified that Mr. Rogers said he was sorry, and that his car was having mechanical and steering problems. His statement to the police, however, spoke only of Rogers mentioning that he had mechanical problems and not steering problems. Mr. Hyden helped Mr. Campagna get his bike off him and then directed traffic. He described the accident as a moment of inattention. Mr. Tress was with Mr. Labbe when they spoke to Mr. Rogers. Mr. Tress does not recall Mr. Labbe saying anything to Mr. Rogers. He does recall Mr. Rogers admitting he was the driver, and saying he was sorry and that he had mechanical problems. Mr. Tress commented that Mr. Rogers was upset, but clearly not impaired.
An agreed statement of facts set out that Rama Emergency Medical Services was advised of the collision at 3:23 p.m. and the first ambulance arrived on scene at 3:37 p.m. Constable Trina Gosse has been with the OPP for 12 years. She was working on the Canada Day weekend and was called to the scene. She arrived at 3:30 p.m., made observations at the scene and spoke to Mr. Rogers at 4:21 p.m. Her evidence was Mr. Rogers did not appear impaired or fatigued, but he was shocked and overwhelmed. She said this was quite normal for persons involved in accidents of this nature. While walking towards the BMW to get his driver’s licence, Mr. Rogers told Constable Gosse that he knew the struts were going on his car and he can usually handle it, but it got the better of him that day. When cautioned not to say more, Mr. Rogers continued, and told Gosse that he had been heading home to Oshawa after partying in the Wasaga Beach until 2:00 a.m. and then getting up at noon. After walking the scene and making observations, and speaking with witnesses and other officers, Constable Gosse believed she had the reasonable and probable grounds to arrest Mr. Rogers. He was arrested at 6:34 p.m.
Ms. Raeme Lockington gave evidence as a civilian witness for the Crown. She had not given a statement at the scene, so her evidence was based on her recollection from two years prior. She is an elementary school teacher who was driving back from her cottage southbound on Highway 12 when she saw the accident. Her husband, Ian Crapper, was in another vehicle three cars ahead of her.
Ms. Lockington told the court that July 4th, 2010 was a sunny, dry day with good visibility. Traffic was moderate and she was driving 90 kilometres an hour. She came upon a group of motorcyclists driving northbound. There were about 8 to 10 of them riding in a staggered position. Suddenly, she saw one of bikers wobble in his own lane, crash on the ground and start to spin. The car ahead of her husband veered across the line by about one to one and a half feet at most and the bike went out of control.
Ms. Lockington could not tell what caused the BMW to cross the centre line. She did not see any actual contact between the BMW and any bike. She veered off the highway and saw that the bikers behind the one who crashed were colliding into him. It all happened very quickly. Her husband pulled off the highway as well and told her he had called 911. She noted that there were three people in the BMW.
Travis Mathews was also driving on Highway 12 on July 4th, 2010 and saw the accident. He was driving behind the riders who, he said, were doing between 80 and 85 kilometres an hour. It was sunny and clear with good visibility. He had been following the riders for about 15 minutes when he saw a black BMW veer into the southbound lane by two to three feet and strike one of the bikes. He agreed that in his statement to police, given on July 4th, 2010, he said the BMW was only two feet over the line. He thought the BMW had been pulling out to pass. Once the car struck the motorcycle, debris started flying everywhere and other bikes started going down. He pulled onto the southbound shoulder about 20 feet behind the BMW and saw the driver get out of the car. He seemed distraught, and he was saying he made a big mistake and that he had hit a bump or debris in the road. Mr. Mathews did not tell the police, on July 4th, 2010, that he heard Rogers say that he had made a big mistake. He said that only at trial. Mr. Mathews called 911 within 30 seconds of seeing the accident.
The Expert Evidence
Officer Brett Carson was called as an expert accident reconstructionist by the Crown. He has achieved the highest level of police accident reconstruction training, level four, and has had that designation since 2004. He was accepted as an expert in his field to give evidence on accident reconstruction and causation.
Carson was on scene between 5:00 and 11:00 p.m. on July 4th, 2010. While on scene, he worked with Officer Brad Pearsall, who is also a level four accident reconstructionist. Officer Carson gave an opinion that the BMW crossed over the centre line, and collided with the Sprecker and Campagna bikes, which in turn caused collisions with the Yeoman and McEachern bikes.
Officer Carson examined the physical evidence such as the car, the bikes and the debris, and could not tell from that when the BMW crossed the line or how long it was there. There were no tire or skid marks to indicate a hard turn and no evidence of hard braking either before or after impact.
Officer Carson was asked to give an opinion on the point of impact between Mr. Sprecker’s bike and the BMW which he did based on the tire mark, the concentration of debris and fluid, and the path of the bikes post-collision. Officer Carson observed that there was damage to the left front tire of the BMW because it had been punctured by the foot peg of the Sprecker bike. The tire deflated and collapsed when punctured by the peg. The edges of the rim were then completely on top of the rubber of the tire. The quick deflation and the contact of the rim with the rubber created a continuous tire mark on the road. Contact by the BMW with the foot peg would therefore have been just before the tire mark according to Officer Carson. He conceded he could not tell how soon prior to the creation of the tire mark the contact occurred, but deflation would have been rapid. Carson supported his conclusion with the location of various debris from the car and motorcycle that was located on the road. Carson told the court that all of the physical evidence from the Sprecker bike and the car dispersed from that point.
Officer Carson took photos of the scene and reviewed them with the Court. The photo contained in Exhibit 19(b)(i) is a photo of the area of impact. Although difficult if not impossible to see in the photo, Carson told the court that there was an outline of two distinct black parallel lines, which he called the “tire mark.” Carson marked an “X” at what he said was the commencement of the tire mark caused by the left front tire of the BMW. His evidence was that the tire mark was visible as it moved through the yellow centre line and was continuous to the location of the BMW. The lines were then traced on the photo. Carson then marked the tire mark on Exhibit 20, which is a small scale version of the large diagram in Exhibit 2. The tire mark started at a point that he drew as “X1” and is drawn continuously to “X2” where the BMW was parked on the shoulder. The length of the tire mark was 106.21 metres long. Carson agreed that the tire mark was faint and was not visible even to him at certain angles. He told defence counsel that it would not be unreasonable for someone to say they could not see it at all. Further, there were other tire marks on the road as well as shadows, depressions and other marks which interfered with the ability to see the tire mark in the photograph. Carson conceded that even the best photos did not show a continuous tire mark when put together, and the best photo available of the tire mark was that contained in Exhibit 19(b)(ii).
While he did not measure the width of the parallel lines of the tire mark, he visually compared them with the BMW tire. The tire mark in combination with the debris, fluid and human tissue on the road assisted Carson in coming to his conclusions. If there were no tire mark, he would be unable to say exactly where the BMW crossed the centre line, but his view was he would still be of the opinion that it likely did cross the line.
Carson was cross-examined on his reliance on debris as a factor in concluding where the point of impact was. He conceded that while debris is not the most reliable indicator of the location of a collision, it should still be considered and formed a part of his conclusions.
Carson also referred to Exhibit 16 which showed a transparent view of the BMW and its position in relation to the tire mark and the roadway. Carson testified that this is where the BMW was at the point of impact. According to this diagram, the left front tire of the BMW was 36 centimetres from the centre of the road in the oncoming lane. Carson’s view was that this was likely the farthest the BMW was over the centre line. As there was no scuff or skid marks on the road, Carson’s opinion was that the path of the car over the centre line was not an abrupt one, but a gradual one.
The diagrams and Exhibit 2 were created from measurements taken at the scene by Officer Pearsall using a total station device. The device logs the raw data from the measurements and allows one to produce drawings based on those measurements. By the calculations in Carson’s report, 50 percent of the BMW was in the wrong lane from the start of the tire mark. Carson agreed in cross-examination that there was nothing in his report which set out how he came to that conclusion. He agreed he did not use an exact measurement of the width of the BMW notwithstanding that that would be a very important component in measuring how far over the line the vehicle would have been. The calculations in his report also did not take into account that the actual centre line is an imaginary one which is between the two centre painted lines.
Carson did not disagree with the calculations presented to him by the defence which put the BMW at 28 percent over the imaginary centre line with the tire mark 36 centimetres over the imaginary centre line. He agreed that this would put the BMW about a third over the centre line and not the 50 percent in his report. Part of the difficulty was that Carson did not know what coordinates were input by Pearsall with respect to the width of the BMW, but he relied on them in any event and assumed they were accurate.
Carson agreed that the normal riding distance for motorcyclists from the northbound lane marking to the bike in the left tire track is 100 centimetres. As such, it was put to him that one could, notionally, be riding 115 centimetres from the physical centre line. If Mr. Rogers was 36 centimetres over the centre line and Mr. Sprecker was 115 centimetres from the centre line, they would not have made contact. Carson did not agree with this proposition.
Officers Carson and McLaughlin examined the BMW post-accident. Their evidence was that it had only contact damage. The left front tire was deflated, but attached. It was not torn or shredded, but there was a hole in the sidewall of the tire. Officer McLaughlin is a certified auto mechanic and accident reconstructionist. He concluded that there were no mechanical defects which could have caused the collision.
Exhibits 27a) to k) were photos taken showing what Carson and McLaughlin believed were the contact points between the BMW and the bike as they passed one another on the road. Officer McLaughlin also took pictures of the foot peg from the bike and the tire hole. Those photos, Exhibits 26a) to g), show the width of the cap of the foot peg is the same width as the hole in the BMW tire. Carson’s opinion was that it was the foot peg that caused the damage to the BMW and therefore the size of the hole created the rapid tire deflation.
Officer Brad Pearsall also gave expert evidence as an accident reconstructionist. He has been a level four investigator since 1995 and has been with the OPP for 24 years. Using a surveying type device, called a total station, Pearsall took 187 measurements at the scene of the accident. The data collected was downloaded onto his computer. Using this data, he compiled drawings such as the ones found at Exhibits 2 and 15. He did not measure the painted lines on the road as they are a standard 10 centimetres wide.
Pearsall measured the width of the tire mark which was .2 of a metre. This is the standard width of most car tires. He told the court he could see the tire mark as a continuous line from just east of the centre line to just under the BMW. His opinion was that the tire mark was consistent with a deflated tire which rides heavier on the sidewalls creating a darker mark on the outer edges. He took eleven measurements of the tire mark. Pearsall agreed that the mark could be seen better from some angles than others and was somewhat hard to distinguish. Pearsall disagreed that the tire mark needed to be continuous to be reliable. His view was that one could look at other indicia and as long as everything else lined up, a continuous tire mark would not be necessary.
Pearsall was shown the photos in Exhibits 19(a), 19(b)(ii), 19(c)(ii), 19(d), and 19(e)(ii). He could not confidently say he could see the tire mark in any of those photos. He agreed that from all of the photos, one could only have seen parts of what may have been a tire mark.
Officer Pearsall was asked about the representation of the BMW in Exhibit 16 in which the depicted vehicle is shown 36 centimetres from the centre line. Pearsall testified that the measurements used for the BMW came from a computerized library of vehicle dimensions commonly used by accident reconstructionists. He conceded that the specs from the diagram he used did not conform exactly to the BMW model owned by Mr. Rogers, although, it was of the same BMW series. Pearsall explained that he did not use the exact model dimensions because his purpose in creating Exhibit 16 was to show the position of the vehicle at impact and not exactly how far it may have been over the centre line. The drawing was not intended to be used to calculate the percentage by which the vehicle may have been over the line.
Gordon Jenish was called by the defence as an expert in the area of collision reconstruction. He is a professional engineer working in the area of accident reconstruction for 22 years. He operates his own business and works in the area of accident reconstruction full time. He has given evidence in court 39 times in both civil and criminal matters. He has given lectures to police officers training for their level four designation.
In preparing to write his report, Mr. Jenish read Officer Carson’s report, including the field measurements and notes, and examined the Rogers’ vehicle. He agreed that there was nothing to indicate that the accident was caused by any mechanical failure on the part of the Rogers’ vehicle.
Mr. Jenish testified that the total station measurements are not guaranteed to be accurate. Their accuracy is dependent on the person holding the pole with the total station device at the top. He discussed the concept of the centre line on the road. The actual centre line is imaginary. This is because each of the painted lines in the middle of the road is 10 centimetres wide and there is a ten centimetres gap between them. The imaginary centre would run down the centre of that gap. This was of importance because the diagrams in evidence from the Crown showed the beginning of the tire mark as 36 centimetres from the centre line. However, the closest centre line measurement taken by the total station was 60 metres away from the north and 10 metres away from the south. Mr. Jenish’s view was that it would have been important to take a centre line measurement from the point at which it was believed the impact occurred.
According to Mr. Jenish, in order to be able to establish that the tire mark began 36 centimetres from the centre of the road, you would need a continuous mark. Gaps in the mark would prevent the ability to accurately define the vehicle trajectory as assumptions must be made where there are large gaps.
Mr. Jenish reviewed the photograph in Exhibit 19(a). He could not say that what he saw in the photo was a tire mark. Further, it looked too narrow for a tire mark as a car tire is typically 10 centimetres wide and what he saw in this photo was a narrow smudge. Mr. Jenish was also shown the photo in Exhibit 19(b) on which Officer Carson had marked the tire mark as an “X”. He could not see a tire mark in the foreground of the photo. Mr. Jenish testified that he has photographed tire marks before and agreed that they can sometimes be difficult to photograph. When that is the case, photos need to be taken from four or five different directions and the use of evidence markers helps. Mr. Jenish was also shown the photos in Exhibits 19(c)(i), 19(d), (e), (e)(i) and (f)(ii). Again, he could see some smudges, but nothing that he could conclude was a continuous tire mark or which could be connected to the Rogers’ vehicle.
Mr. Jenish conceded that he had not personally attended the scene and that if he had, he would have been in a better position to view the road and the tire marks described by Pearsall and Carson. He also agreed that the mark described by Carson and Pearsall could be consistent with a deflated tire riding on its rim and causing parallel tire marks.
Mr. Jenish commented that debris is not a reliable indicator of point of impact, especially, between a car and motorcycle which have such different body masses, and because the car has a smoother body than the motorcycle. Mr. Jenish was unable to conclude that the BMW crossed the line on July 4th, 2010. His evidence was that 20 percent of the vehicle was in the northbound lane, assuming the tire mark was related to Mr. Rogers’ vehicle. When doing his calculations to reach this conclusion, Mr. Jenish reiterated the importance of using the specs for the proper model of BMW, as that affected the width measurement.
Mr. Jenish prepared some simulations using a 3D computer program. PC Crash can create an accident scene with scaled vehicles to spec and generate 3D views from different directions. The PC Crash simulation in Exhibit 53 was based on the police measurements, with Mr. Rogers 36 centimetres over the centre line and Mr. Sprecker in the left tire track. The simulation shows that there would have been no contact, or glancing contact with the mirrors. Mr. Jenish agreed that if the left front tire of the BMW was at the commencement of the tire mark, the BMW would have been 29 percent over the centre line. He conceded that if the vehicle was over the line by that much, it would have been enough to kill Mr. Sprecker, even if Mr. Sprecker were riding where he should have been. It was put to Mr. Jenish that his recreation of the scene in which he says the BMW was only 20 percent over the line, assumed that Mr. Sprecker’s bike was closer to the centre line than it ought to have been. He disagreed with that and said that his rendering was based on the damage pattern to both the car and the motorcycle.
Based on Mr. Jenish’s report and the police data, the amount of time it took the BMW to get into the northbound lane was as little as .4 of a second or as long as 1.3 seconds, depending on whether the car turned abruptly or smoothly. Mr. Jenish was unable to say how long the BMW may have stayed in the northbound lane and agreed that those who were at the scene were likely better able to assess that.
Mr. Jenish was asked to comment on Mr. Rogers’ utterances at the scene concerning mechanical problems with the struts on his car. His comment was that struts are part of a car’s suspension. It is possible to have a mechanically fit car, but still experience some noise from the suspension.
Jeremy Dupuis was called by the Crown as an expert in computer hard drives, cellphones and forensic examination of both. He is employed by the OPP as a special constable, and has worked in the electronic crime section for the past eight years and for the OPP for eighteen years.
His evidence was that in examining a cellphone, he could extract when a call was made, received or missed. He could also tell if a text message had been read. Mr. Dupuis examined the cellphone that Mr. Rogers had with him on the day of the accident. There was no disagreement that this was a Samsung phone with the number 905-442-5931. Mr. Dupuis was able to retrieve the usage on that phone from July 4th, 2010. This was reproduced by way of an executive summary in Exhibit 47.
A text was received on Mr. Rogers’ phone at 15:22:44 from a sender called Will’s cell. Mr. Dupuis testified that the time noted of 15:22:44 is the time that the text was received as recorded by the handset. The text had been read. Mr. Dupuis was unable to say when or how long after. An incoming text can be accompanied by vibration or chime. Mr. Dupuis also told the court that although the phone had Bluetooth capacity, the Bluetooth had not been set up.
The Defence Evidence
The accused testified in his own defence. He denied that on July 4th, 2010, at the time of the accident, he was texting or calling while driving. He denied being intoxicated, fatigued or pulling out to pass. He was not speeding. He was 24 at the time of trial and 22 at the time of the accident. He has a high school education and currently works at Nathan Bowman Contracting.
Mr. Rogers planned to go to Wasaga Beach with some friends for the Canada Day weekend in July, 2010. Since he was going to be driving, he took his BMW in for service as he had hit a bump and afterwards noticed a noise which he thought was a problem with the suspension or a strut. Sometimes the front end would wobble if he hit a bump on the road. The mechanic could not find anything. Garage receipts for work done on the BMW between January and May, 2010 showed that Mr. Rogers took very good care of his vehicle.
On July 4th, 2010, Mr. Rogers was heading back to Oshawa. He had three passengers in his vehicle. They had stopped at a friend’s house in Barrie for a swim and decided to go back to Oshawa via Highway 12 on the suggestion of another member of the group, Kyle Sloss. Mr. Rogers was not as familiar with this route as others and admitted to calling Mr. Sloss several times to check for directions. He admitted that he should not have been on the phone while driving, but he was not talking to Mr. Sloss at the time of the accident. He told the court he does not normally take or make calls while driving, or read texts as he knows that it is against the law. He did call Mr. Sloss to reassure himself of the right directions.
Mr. Rogers admitted that his phone was between his legs at the time of the accident and that he would have felt the vibration of a text coming in, however, he denied looking down to read it. Although right handed, Mr. Rogers testified that if he was operating his phone, he might use either hand. The Crown put to him that if his left hand was on the wheel, he could have used his right hand to pick up his phone and look down to read the text. Mr. Rogers denied this.
Just before the accident, Mr. Rogers noticed that all of his passengers were asleep. He turned to look at James McGraw who was in the front passenger seat and when he looked back, he had collided with a motorcycle. He is not sure he went over the centre line or who was at fault because everything happened so quickly. After the impact, he pulled on to the shoulder. The passengers in the back got out and left. Mr. Rogers was upset and in shock. He urinated himself when he got out of the car. He was approached by two of the riders who were very angry with him. They assumed it was his fault. He told them and Constable Gosse that he had a mechanical problem. He explained that he said this because he didn’t know who had crossed the line and began to wonder if it was his fault as a result of a mechanical problem. He was still searching for an explanation as to what had happened. A few days prior to the accident, he had felt a wobble in the front of the vehicle, but it was minor and able to be controlled. That is why he told Gosse about his speculation about the struts. He also said he had hit a bump, but he thought maybe the bump was the actual accident happening.
Mr. Rogers was asked why he told other witnesses that he was sorry. He said this was because it was all so devastating, and that he was sorry and is still sorry because he does not know what happened. He is sorry about the tragedy no matter how it was caused. When he heard Mr. Sprecker had died, he felt as if his heart was in his throat. He stills feels that way when he thinks about it.
Mr. Rogers did not recall ever saying that he had made a big mistake and he disagrees with Mr. Hyden’s observation that he was looking down at his centre console when passing by him. He denied that he was looking at his phone or texting, or calling. He admitted that he did not see Mr. Sprecker until the moment of impact, and did not recall coming close to any of the other riders, or even passing the first four riders before Mr. Sprecker. As such, he did not take evasive action such as braking or turning; he just veered onto the shoulder.
Mr. Rogers conceded that a glance to the left or the right, or a minor strut problem would not account for him being in the wrong lane, but having his eyes off the road and looking at his centre console would account for that. However, Mr. Rogers consistently said he did not know who crossed over the line first and that maybe Mr. Sprecker came into his lane.
Mr. Ian Crapper gave evidence as a witness at the scene. He is the husband of Ms. Lockington and was driving home from their cottage in his Toyota Camry that day. He was doing about 90 kilometres an hour and his wife was a few cars behind him. He had been following one car length behind Mr. Rogers’ BMW for about 15 minutes.
He saw the group of bikers riding towards him and noticed a wobble on the curb- side bike. The biker beside him veered over and hit the driver’s side quarter panel of the BMW. He is not sure if the biker or the BMW crossed the centre line. He thinks the BMW came close to the centre line, but does not recall if it actually went over.
Prior to the accident, he had not noted anything unusual about the way the BMW was being driven. Upon impact, the witness had to veer away quickly and saw two other riders go down. The BMW pulled over to the shoulder calmly. Once over to the side, the witness immediately called 911.
Mr. Crapper was not asked to give a statement at the scene. He did not give a statement until June 2012 when contacted by a defence investigator. The 911 tape of Mr. Crapper’s call was played in court. The call was received by dispatch at 3:21:45. Mr. Crapper told dispatch that the BMW was hit by one of the bikers. His exact words were, “The motorcycle did a bit of wobbly-wob and it wasn’t the guy in the Beemer’s fault.”
Mr. Crapper was cross-examined about his memory of the accident. He agreed that his wife had a different recollection of the event and that it is possible he could be mistaken about the BMW not being at fault, and that it is also possible that the bike wobble was caused by it impacting the vehicle.
A brief summary of the evidence of the motorcycle wobbling is needed in order to put the evidence of Mr. Crapper in context. First, the evidence of the riders themselves: Mr. Wyllie, in position nine, said he could not see all the riders all the time and so it was possible that one of the other riders experienced a high or low speed wobble.
Mr. Labbe, in position one, was unable to say whether any of the other riders had a wobble on the day of the accident. He has personally never experienced one.
Mr.Hyden, in position three, did not see any wobble on the day of the accident.
Mr. Tress, in position four, said he would not have been able to see the riders beside him, but did not observe that those ahead of him, Mr. Labbe or Mr. Potvin, experienced a wobble.
Mr. Yeoman, in position six, did not see any of the riders in front of him wobble that day.
Mr. Campagna, in position seven, and Mr. McEachern, in position eight, did not see any of the riders in front of them experience a wobble. Mr. Campagna testified that Harley-Davidson bikes sometimes have trouble with wobbles, but no one was riding a Harley that day.
Officer Brian McLaghlin testified that wobbles usually occur at high speeds when the front wheel will start to move back and forth. Usually, this occurs at speeds in excess of 150 kilometres an hour. A low speed wobble can occur with over steering or low air in the back tire. He agreed it is possible that a wobble could occur if a rider was fatigued and lost control.
An agreed statement of facts was entered with respect to the evidence of Mr. James McGraw, Mr. Rogers’ passenger in the front seat. Mr. McGraw was asleep when the accident occurred and was awaken by the sound of a smash. He looked back to see the motorcycles and debris flying everywhere. After the BMW stopped, he saw Mr. Rogers go to the scene to talk to people. He spoke to police and then left for home.
Analysis and Findings:
The issue for this court to determine is whether or not the Crown had proven beyond a reasonable doubt that Mr. Rogers drove in a manner that was dangerous and a marked departure from the standard of care of a reasonable person in the accused’s situation.
As per the decision of the Supreme Court of Canada in R. v. Roy, it is important that the court not leap to a conclusion about dangerousness simply from the consequences of Mr. Rogers’ driving. There are two important components to examine; the risks and the manner of the accused’s driving, and proof of a marked departure from the standard of care. In the Roy case, Mr. Roy drove onto a highway into the path of an oncoming tractor trailer. The conditions were foggy and slippery. Mr. Roy’s passenger was killed. Mr. Roy had no memory of the incident. In coming to its conclusion that Mr. Roy was not guilty, the court was careful to point out that carelessness cannot extend to a level of criminal fault, and that dangerousness is not to be inferred from the consequences of the accident.
In R. v. Beatty, the accused crossed the centre line of a highway and killed three people. No mechanical failure or intoxicants were involved. In overturning the conviction imposed by the Court of Appeal, the Supreme Court of Canada noted that the criminal standard of proof requires the punishment of blameworthy conduct. A momentary lack of inattention does not fall within the criminal standard of blameworthy conduct, unless it is accompanied by an activity incompatible with maintaining proper control of the vehicle.
In R. v. Willock, an 18-year-old was driving his friends to another friend’s home. He veered into oncoming traffic for no apparent reason. The road was dry and well lit; no alcohol was involved. Mr. Willock went over a median and killed one of his own passengers and injured others. The accused could not explain the loss of control of the vehicle. The Crown alleged that he was showing off. The Court found that conduct occurring in a two or three second interval, where the driving is otherwise normal, may amount to a civil standard of negligence, but may not be sufficient for a criminal standard of dangerousness or recklessness. Similar to Willock, in R. v. Lubjenka, a Superior Court decision, the accused rear-ended a car making a left turn. He killed one person and injured four others. He was acquitted on the grounds that during a brief loss of concentration, he failed to adequately swerve and avoid the car in front of him. While the court found that the accused was likely negligent, his driving error did not reach the level of criminal misconduct.
The Crown argues that there is evidence to support that Mr. Rogers was reading a text at the time of driving. The Crown submits this is an activity incompatible with the proper control of his vehicle as per the Beatty case, and as such, forms part of a larger pattern which can take any momentary inattention into the realm of a marked departure.
The defence argues that the Crown has not proven that Mr. Rogers crossed the centre line and even if he did, that his driving did not constitute a marked departure from the standard of care.
Given all of the evidence, and the guidance from the Supreme Court and Courts of Appeal, and based on the proper law to apply to these facts, I find that the Crown has not proven that Mr. Rogers drove in a manner that was dangerous and a marked departure from the standard of care of a reasonable person in similar circumstances. My reasons for that finding are as follows:
There are frailties in some of the eyewitness evidence that makes it difficult to rely upon. This is not unexpected when an accident occurs within a brief second and those involved are driving towards one another at 160 kilometres an hour. Mr. Rogers cannot really say what happened. I accept his evidence that in one brief moment, he is uncertain as to who crossed over the line or who was in what lane. I accept that his utterances after the fact with respect to his struts were his attempt to search for some understanding of why this accident occurred. Saying sorry to other witnesses was also a natural reaction to a tragic event, especially where Mr. Rogers was still questioning whether he was at fault.
There were inconsistencies in the riders’ evidence. Some of the riders said they had spoken to one another before and after giving their statements. Mr. Campagna said, for example, he estimated the BMW as 80 percent or 2 feet over the centre line, but this is not plausible given the expert evidence, even that of the Crown’s experts. Ms. Lockington did not notice anything unusual about Mr. Rogers’ driving and could not say what caused his car to cross the line. She did not actually see any contact between the BMW and any motorcycle. Her evidence was completely from memory as she had given no statement to the police.
Even without the frailties of the eyewitness evidence, a reasonable doubt is raised by the 911 call made by Mr. Crapper, who said that the BMW was not at fault and did not cross the centre line. While he conceded in cross- examination that he could be mistaken about that, he was in a better position than most because he had been following Mr. Rogers for 15 minutes and noted nothing unusual about his driving, further, the call to 911 was made immediately following the accident. While Mr. Crapper describes one motorcycle doing a wobbly- wob, there is no other evidence from the riders or anyone, really, to support that any of the motorcycles experienced a true high speed or low speed wobble. I accept and find that Mr. Crapper may not have been completely accurate in his description of exactly what action was taken by the bike to put it in Mr. Rogers’ path. In the end, I am not certain that this is a critical point. The importance of Mr. Crapper’s evidence relates to what he saw as to who was at fault.
The Crown’s experts relied mostly on the tire mark for their conclusions about where the point of impact was on the highway. The Crown’s experts conceded that the debris field is not always a reliable indicator to use for a point of impact, although, it is certainly a part of the overall consideration in accident reconstruction. A question is then raised as to why Officer Pearsall did not measure the tire piece debris from the BMW. Left then only with the tire mark, a reasonable doubt is raised as to exactly where the BMW was at point of impact.
First, the tire mark cannot be seen in the photograph in Exhibit 19(a). Mr. Jenish agreed that rapid deflation of a tire would cause the mark described by Carson and Pearsall. The problem was that Mr. Jenish and this court, despite our best efforts, could not actually see a mark, but only a smudge.
Second, given the difficulty in actually viewing the tire mark, it cannot be said to be continuous. The defence expert, Mr. Jenish explained that a continuous tire mark was necessary to connect the point of impact to the BMW; Officer Carson agreed.
As well, neither Pearsall nor Carson obtained the proper specs of the Rogers’ BMW model to ensure an accurate calculation. Indeed Officer Carson reports that the BMW was 50 percent over the line, but he revised this after reading the Jenish report and agreed the BMW may have only been 25 percent over the centre line.
While discussing percentages of the vehicle over the centre line, Carson could not say exactly how the centre line was measured. Since it is an imaginary line halfway between the two dividing highway lines, both Carson and Jenish agreed that there was some evidence to conclude that Mr. Rogers may not have crossed the centre line.
Given that evidence, the court is referred back to the evidence of Mr. Crapper who, while driving directly behind Mr. Rogers, said that he was not at fault and that he may not have crossed the centre line.
Further, I am not persuaded that the Crown has proven beyond a reasonable doubt the fault element of the offence, that is; even if Mr. Rogers did cross the line, what is the evidence of marked departure? There is the text which shows that it was received on Mr. Rogers’ phone at 3:22:44. Mr. Crapper called 911 at 3:21:50. As it is clear that the 911 call occurred after the accident, it is impossible that Mr. Rogers was reading the 3:22 text at the time of the accident. Even if the timing is out, as Ms. Fortier form Rogers Communication testified, that times recorded at the switch office could be a few seconds out, there is no evidence that Mr. Rogers read the text at that time as the evidence of Mr. Dupuis was that he could only say that this was the time the text was received. He could not tell when it was actually read.
Mr. Rogers’ evidence was that he read this text when he was waiting in the police cruiser where he remained for about two hours with his phone. Further, a phone call made by Mr. Rogers 12 minutes before the text message was too far back in time to be relevant to the accident.
There was no evidence that Mr. Rogers was driving abnormally before the accident. This is confirmed by Mr. Crapper, who was in the best position to observe. Mr. Rogers was not impaired or fatigued.
The only real evidence of marked departure would then be the evidence of Mr. Hyden, who said he saw Mr. Rogers looking down and doing something, perhaps fiddling with the radio, but Mr. Hyden saw him for less than a second. There was no evidence that anyone saw Mr. Rogers on his phone or looking at his phone. As Justice Pardu said in R. v. Lubjenka, “a reasonable driver does not keep his or her eyes glued to the road in front at all times. Driver’s must check their rearview mirrors, speedometers, adjust the temperature in the vehicle, have regard to oncoming traffic and the manoeuvres of their own vehicle...”
I am therefore not persuaded beyond a reasonable doubt, nor does the evidence support, that Mr. Rogers was looking down or to the side for any purpose that would come close to the marked departure standard. While I agree with the Crown that if such evidence existed, it may well support an argument that Mr. Rogers was not properly in control of the vehicle at the time, there is no evidence to support that based on my findings.
Even if Mr. Rogers was over the centre line by 36 centimetres, and Mr. Sprecker was in the left tire track, Mr. Jenish testified that there would have been no contact between the vehicles or only glancing contact with the mirrors. Mr. Jenish positioned the vehicles based on the damage pattern to the vehicles. However, if the left front tire of the BMW had been at the commencement of the tire mark, Mr. Jenish conceded that would have been sufficiently over the line to kill Mr. Sprecker. But what about the fact that the tire mark could not be seen? Again, while the Crown’s accident reconstructionist provided a probable scenario, it was not sufficiently reliable, based on the lack of continuity of the tire mark and ability to observe the tire marks contrasted with the evidence of Mr. Jenish, to persuade this court beyond a reasonable doubt that the marked departure threshold could be met.
The Crown relies on R. v. Willock for the proposition that conduct in a two to three second period can result in a marked departure. The Crown argues that in this case, Mr. Rogers’ attention was diverted by his phone to the extent that he did not notice he was going into the oncoming lane, and did not fully understand what he was doing until he had hit Mr. Sprecker and other riders went down. So it does not matter how short a time his attention was diverted; it is the reason for the diversion that is critical. However, as indicated above, I am not persuaded beyond a reasonable doubt that Mr. Rogers was on his cell phone or reading a text. His driving beforehand was not erratic. If he did go over the line for a brief period, it may be as Justice Doherty says in Willock, more suggestive of a civil rather than a criminal standard of blameworthiness.
Given all of the above, I find that the Crown has not proven beyond a reasonable doubt that Mr. Rogers drove dangerously or in a manner that was a marked departure from the conduct expected of a reasonable driver. The charges against Mr. Rogers shall therefore be dismissed and an acquittal entered on all counts.
MR. RUSSELL: Thank you, Your Honour.
THE COURT: I just wanted to mention that this has been an extremely difficult trial for everyone involved and that the lawyers in this case did a superior, superior job. They were very well organized, very efficient and they are both experts in their field, so thank you.
MR. RUSSELL: Thank you, Your Honour.
THE COURT: Now, anything further that we need to do at this point?
MS. RIVA: I don’t have anything further.
MR. RUSSELL: No, nothing, Your Honour.
THE COURT: I will endorse the indictment then.
MATTER ADJOURNED