Court File and Parties

COURT FILE NO.: 7144

DATE: 2013-12-19

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

TIFFANY MACMILLAN

Defendant

Counsel: M. Kelly, for the Crown D. Orazietti, Q.C., and P. Cavanagh for the Defendant

HEARD: November 25, 27, 28, and December 2 and 3, 2013

REASONS FOR JUDGMENT

Justice E. Gareau:

[1] The accused, Tiffany MacMillan, is charged with two counts detailed in an indictment dated September 30, 2010. The indictment reads as follows:

Tiffany MacMillan stands charged that she on or about the 15^th day of June, 2009, at the Town of Blind River, in the said Region, while her ability to operate a vessel was impaired by alcohol, did have care and control of a vessel, to wit: a motorized boat and did thereby cause the death of Rocque Seguin, contrary to section 255(3) of the Criminal Code of Canada, and

Tiffany MacMillan stands further charged that she on or about the 15^th day of June, 2009, at the Town of Blind River, in the said Region, having consumed alcohol in such a quantity that the concentration thereof in her blood exceeded eighty milligrams of alcohol in one hundred milliliters of blood, did while having care or control of a vessel, to wit: a motorized boat, cause an accident resulting in the death of Rocque Seguin, contrary to section 255(3.1) of the Criminal Code of Canada.

[2] Tiffany MacMillan entered pleas of not guilty to the charges.

[3] This matter has had a history in that it was earlier dealt with on March 28, 2011 by Koke, J. with that proceeding resulting in a mis-trial. This matter was then dealt with by Mr. Justice I.S. McMillan, who heard a voir dire on an application under the Canadian Charter of Rights and Freedoms. The voir dire before Mr. Justice McMillan resulted in the finding of a Charter breach under s. 10(b) of the Charter and an order excluding from evidence the results of the Intoxilyzer breath tests. In the end, an acquittal on the charges was entered by the court on June 27, 2011. Those findings by McMillan, J. were subject to a crown appeal which was heard by the Ontario Court of Appeal on October 11, 2012. The Court of Appeal, Rosenberg, J.A., writing for the court released a written decision on February 21, 2013 allowing the crown appeal, setting aside the acquittals and ordering a new trial.

[4] The re-trial is now before me and that commenced on November 25, 2013. On that day, I heard evidence on a voir dire on a Charter application dated October 3, 2013 brought by the accused.

[5] On November 27, 2013, I delivered a decision on the Charter application in which I held unreasonable search and seizure under s. 8 of the Charter had been breached, but the results of the Intoxilyzer breath tests would not be excluded from evidence on a s. 24(2) analysis.

[6] By agreement between counsel, the evidence received on the voir dire would be applied to the trial proper. The court heard evidence on the trial on November 27 and 28, 2013 and on December 2 and 3, 2013.

[7] On December 3, 2013 the court reserved its decision to today’s date.

[8] This case is both troubling and tragic. Rocque Seguin lost his life on June 15, 2009 in a boating accident which can only be described as horrific. The Seguin family suffered a terrible loss which will not be eased regardless of the ultimate decision of this court.

[9] The MacMillan family has also suffered tragic consequences as a result of the boating accident of June 15, 2009. It is obvious from hearing the testimony of the accused, Tiffany MacMillan, and her father, Kelly McMillan, that they both have been greatly affected by the events of June 15, 2009 and that they will undoubtedly carry the effects of the tragedy of that day with them the rest of their lives.

[10] The events of June 15, 2009 are troubling in that they involve the abuse of alcohol by young people which led to the operation of a boat by someone clearly under the influence of alcohol leading to the death of an individual.

[11] The undisputed and underlying facts of June 15, 2009 indicate that the day started out innocently enough. Early that morning, the accused met up with one of her friends, Becky Demers. At the time, the accused was 20 years of age and Ms. Demers was 17 years of age, turning 18 years of age the next day. They went from the MacMillan residence in Blind River, Ontario to the LCBO outlet. The evidence of both Tiffany MacMillan and Becky Demers was that alcohol was purchased although Ms. Demers was more exact in her evidence about the type and quantity of alcohol purchased. The exact alcohol purchased by the accused is set out in an LCBO receipt which appears at Tab 17 of Exhibit 11. That receipt indicates that three large 01500ML of Wild Vines wine was purchased along with four packages of Rev, which is a vodka-based cooler. In each package of Rev were four bottles, meaning that 16 coolers in total were purchased. The information confirmed by the LCBO receipt is consistent with the evidence given by Becky Demers as to the quantity and type of alcohol purchased by the accused on the morning of June 15, 2009. The date and time indicated on the LCBO receipt reads “15 Jun 2009 10:22 AM.”

[12] Ms. MacMillan and Ms. Demers then returned to the MacMillan home and began drinking the alcohol Ms. MacMillan had purchased. The plan for the day was to meet up with other friends and go boating on Lake Lauzon in the afternoon. The evidence of Becky Demers is that by about 12:00 noon, she and Tiffany MacMillan had consumed two of the 1.5 liter bottles of Wild Vines wine. Ms. Demers could not indicate how much of the wine each of them had consumed, only that two bottles had been finished off and that she and Tiffany were sharing the wine.

[13] The evidence indicates that at some point between 12:00 noon and 12:30 p.m., Matt Gosselin and Brad Horton arrived at the MacMillan residence to pick Tiffany and Becky up. These four individuals left the MacMillan residence and drove to the Beer Store in Blind River. Tiffany MacMillan purchased a hat at the Beer Store. The receipt for that purchase is filed as Exhibit 11 at Tab 17 and indicates a time of 12:49 p.m.

[14] From the Beer Store, Tiffany, Becky, Matt and Brad went to the Seguin home to pick up Rocque Seguin and Stephane Seguin. According to the evidence of Becky Demers, there was drinking by her and Tiffany in the vehicle on the way to the Seguin residence and at the Seguin residence where they stayed for approximately 45 minutes. It was the evidence of Becky Demers that by the time they left the Seguin residence, that there was approximately one half of a bottle of wine remaining, meaning that between approximately 10:30 a.m. and 1:30 p.m., Ms. Demers and Ms. MacMillan had consumed 2½ 1.5 litre bottles of Wild Vines wine.

[15] The group of six, Tiffany, Becky, Matt, Brad, Rocque and Stephane left the Seguin residence and went to the landing at High Road on Lake Lauzon, which is on the west side of Lake Lauzon. The boat, which was owned by Matt Gosselin, was launched into Lake Lauzon at this location with all six being passengers in the boat. It was the evidence of Becky Demers that Tiffany MacMillan had five or six Rev vodka coolers while she was in the boat. Tiffany MacMillan testified that she had no idea how much she had to drink and cannot assist the court as to the details of the alcohol she consumed on June 15, 2009. I have no reason to disbelieve or doubt the evidence of Becky Demers with respect to the alcohol consumed on June 15, 2009 by herself and Tiffany MacMillan.

[16] Once the boat was in the water, the six individuals spent the afternoon water skiing, wake boarding and knee boarding, moving about Lake Lauzon in the boat owned by Matt Gosselin. Stephane Seguin estimated that they were involved in these activities on the water at Lake Lauzon for about three to four hours in the afternoon of June 15, 2009. Eventually, the boat made its way to the MacMillan cottage on Lake Lauzon.

[17] It was the evidence of Stephane Seguin that the group of six hung out at the MacMillan camp for 1 to 1½ hours before the boat left the camp and went out on Lake Lauzon for the final time. Stephane Seguin indicated in his evidence that he didn’t keep track of how much Tiffany MacMillan was drinking and that “she seemed happy”. Becky Demers recalled that she was feeling the effects of the alcohol and that Tiffany was “more intoxicated” and that she could tell when Tiffany tried to move around that she was intoxicated. Becky recalls an incident at the dock at the MacMillan cottage where she tackled Tiffany into the water and Tiffany had a difficult time getting out of the water.

[18] While at the MacMillan cottage, the Gosselin boat went back and forth out on Lake Lauzon with various people doing water sports activities, such as water skiing, wake boarding and knee boarding. On the final run that afternoon, Rocque Seguin, Matt Gosselin and Tiffany MacMillan went out on the boat. Brad Horton, Stephane Seguin and Becky Demers remained at the MacMillan cottage. Becky Demers testified that she was up in the MacMillan cottage using the washroom and she did not see the boat leaving for the final time. Stephane Seguin testified that when the boat left the MacMillan dock for the last time that his brother, Rocque, was driving the boat. Matt Gosselin testified that the last time out on Lake Lauzon on June 15, 2009 he knee boarded behind the boat with Rocque Seguin driving the boat and Tiffany MacMillan acting as the spotter or look out. The evidence of Matt Gosselin was that at some point he was too tired to continue knee boarding and had to be helped into the boat. Matt suggested to Tiffany and Rocque that they return to the dock at the MacMillan cottage to join everyone there. Rocque insisted that he wanted to water ski before they returned to the MacMillan cottage.

[19] Rocque Seguin was obviously an accomplished water skier as he slalom skied, which is water skiing with one ski on one foot. Before Rocque Seguin began to ski and while he was in the water with the boat approaching him, a horrific and unimaginable accident occurred which resulted in the death of Rocque Seguin.

[20] Both Matt Gosselin and Tiffany MacMillan went into the water to attempt to rescue Rocque Seguin. The father of Tiffany MacMillan, Kelly McMillan, was on Lake Lauzon on his jet ski and noticed the activity in the water and came alongside the Gosselin boat. He assisted in getting Rocque Seguin into the boat and observed from the time that Mr. Seguin was in the boat that he was deceased. The boat travelled to the boat landing on Lake Lauzon at Algoma Mills. When the boat arrived at the landing, Kelly McMillan, Matt Gosselin and Tiffany MacMillan, were on the boat as well as the body of Rocque Seguin.

[21] When the boat arrived at the Lake Lauzon dock, it was met by John Spina and Derrick Bates, who were paramedics employed by Algoma Emergency Services. According to the notes made by John Spina, he and Mr. Bates arrived at the landing at 5:20 p.m. on June 15, 2009. They were waiting on the dock as the boat approached. Tiffany MacMillan was doing CPR, chest compressions, on Rocque Seguin. When the boat was pulled to the dock, the paramedics Spina and Bates, were able to assess that Rocque Seguin was deceased. Mr. Seguin’s body was placed on a backboard which was placed on the dock. Mr. Seguin’s body was covered with a sheet or blanket and remained on the dock.

[22] The Ontario Provincial Police had been notified and Constable Salim Ariss received a dispatch call at 5:31 p.m. Constable Ariss arrived at the dock at Lake Lauzon at 5:40 p.m. Prior to arriving at the dock, Constable Ariss had been advised by dispatch that there had been a collision on Lake Lauzon and that a male had been struck by a vessel and pulled to shore. When Constable Ariss arrived at the scene, he spoke first to John Spina. Constable Ariss observed the deceased body of Rocque Seguin on the dock. Constable Ariss lifted the white sheet covering Mr. Seguin and observed the trauma to him. Constable Ariss saw a male further down the dock, who was Matt Gosselin. The paramedic Bates was giving oxygen to Mr. Gosselin. To Constable Ariss’ right was Tiffany MacMillan. She was sitting down on the dock. She was in a bathing suit. She had a blanket over her shoulders. Constable Ariss describes Tiffany MacMillan as upset, crying, “hysterical” , as he put it. Constable Ariss knelt down beside Tiffany MacMillan to console her. As he was speaking to Tiffany MacMillan, Constable Ariss smelled the odour of alcohol on her breath. That led to a series of questions and answers between Constable Ariss and Tiffany MacMillan. Before the evening of June 15, 2009 had ended, Tiffany MacMillan provided breathalyzer samples of her breath and was arrested on the charges which formed the subject matter of the trial before me.

[23] Entered as Exhibit 3 at the trial is an agreed statement of facts containing several documents, including an audio recording of the 911 call made by Tiffany MacMillan, a report from J.W. Rajotte, Forensic Toxicologist with the Center of Forensic Sciences Northern Regional Laboratory and an autopsy report prepared by Dr. Martin Queen, a pathologist with the Department of Laboratory Medicine and Pathology at the Sudbury Regional Hospital.

[24] Page 4 of the report of Dr. Queen under the headings Summary of Findings and Cause of Death pertaining to the autopsy performed on Rocque Seguin reads as follows:

“Summary of Findings

Information on the Coroner’s Warrant indicates that the deceased was knee boarding on a lake when he was run over by an outboard motor. At post-mortem examination, there were typical propeller wounds to the forehead, left side of the face and left arm. There was severe injury to the frontal skull and brain.

Cause of Death

Propeller wounds to head.”

[25] The agreed statement of facts, Exhibit 3, indicate that on June 15, 2009, Tiffany MacMillan provided two samples of her breath into an approved instrument, a Breathalyzer Model 900, at the Blind River Detachment of the O.P.P. Constable M. Chorny was the qualified technician who prepared the instrument and conducted the tests. The first breath sample was completed at 20:24. The analysis indicated a blood-alcohol reading of 172 milligrams of alcohol in 100 milliliters of blood. The second breath sample began at 20:42. The analysis indicated a blood-alcohol reading of 172 milligrams of alcohol in 100 milliliters of blood.

[26] In his report dated June 30, 2009, Mr. Rajotte, the Forensic Toxicologist, states at the last full paragraph, referring to the above-noted breath sample readings and times:

“Given the above information, the projected blood-alcohol concentration (BAC) at or between approximately 5:00 p.m. and 5:30 p.m. on June 15, 2009 is 175 to 235 milligrams of alcohol in 100 milliliters of blood (mg/100 mL). This projected range is independent of the gender, height, weight and age of the individual, but is dependent on the following additional factors:

1. A rate of elimination of alcohol from the blood ranging from 10 and 20 milligrams of alcohol in 200 milliliters of blood per hour (mg/100 mL/hr);

2. Allowance for a plateau of up to two hours;

3. No consumption of large quantities of alcoholic beverages shortly prior to the incident;

4. No consumption of alcoholic beverages after the incident and before the blood was collected.”

[27] The accused is charged with offences under s. 255(3) and s. 255(3.1) of the Criminal Code of Canada. Although there is conflicting evidence from the witnesses called to testify at the trial as to whether Tiffany MacMillan displayed signs of impairment or intoxication, it has been clearly established by the crown that Tiffany MacMillan consumed alcohol in such a quantity that the concentration thereof in her blood exceeded 80 milligrams of alcohol in 100 milliliters of blood. It is also clear on the evidence that the accident resulted in the death of Rocque Seguin. Rocque Seguin was struck by the boat and this caused his death. As indicated by Dr. Queen in his report (Exhibit 3), the cause of death of Rocque Seguin was “propeller wounds to the head”. This could have only occurred when Mr. Seguin was struck by the boat owned by Matt Gosselin. The court had the benefit of Constable Scott Walker, an O.P.P. officer who the court qualified as an expert in marine accident reconstruction. Constable Walker conducted an investigation of the June 15, 2009 accident and prepared a report which was entered as Exhibit 11 at the trial. On page 14 of his report, Constable Walker arrives at the following conclusions:

“CONCLUSIONS:

• the incident took place on Lauzon Lake near “Spooner’s Narrows”;

• the weather was warm and sunny;

• the involved subjects had been consuming alcohol;

• the involved vessel was an 18-foot aluminum Starcraft with a Mercury 90 H.P. outboard engine;

• the vessel was being used to pull subjects using water skis, a wakeboard, and a kneeboard;

• the vessel struck the male water skier;

• the male subject raised his left arm in a defensive posture before it was struck by the lower unit of the outboard engine;

• the male subject was struck in the head by the outboard engine propeller;

• the male subject suffered fatal injuries as a result of this collision.”

The court accepts these conclusions reached by Constable Walker.

[28] What the court has struggled with is the issue as to whether Tiffany MacMillan had “care and control” of the boat. In law, for the crown to establish the essential element of the charges in counts 1 and 2 of the indictment, namely, that Tiffany MacMillan had “care and control of the boat”, the crown must establish beyond a reasonable doubt that Tiffany MacMillan was the operator of the boat, the driver of the boat, at the time the boat struck Rocque Seguin causing his death.

[29] The question of who was driving the boat when it struck Rocque Seguin was the pivotal question during this trial and much of the evidence the court heard during this trial involves this central issue.

[30] To put it in its simplest form, the evidence relating to the issue as to who was driving the boat when it struck Rocque Seguin, involves the consideration of the following:

(a) Statements made by Tiffany MacMillan when she was on the dock at the Lauzon Lake landing nearest to Algoma Mills shortly after the incident occurred;

(b) Statements that Tiffany MacMillan made to Becky Demers and Ashley Roy on a walk through the Forest Glen Subdivision in Blind River, Ontario days after the June 15, 2009 accident and prior to the funeral of Rocque Seguin;

(c) The evidence of Matthew Gosselin, who testified that at the time Rocque Seguin went into the water to slalom ski the last time on June 15, 2009 to the time he was hit, Tiffany MacMillan was in the driver’s seat of the boat, operating the boat and he was in the rear of the boat performing the role of spotter or lookout.

[31] Tiffany MacMillan testified at the trial. Her evidence does not assist the court as to who was driving the boat at the time Rocque Seguin was struck. Ms. MacMillan testified that she had no idea how much she had to drink. She recalls being at the landing at Lake Lauzon when the boat was first launched on June 15, 2009. She remembers getting into the boat at the landing when the boat was first launched, but she does not remember sitting down in the boat. The next thing Tiffany remembers is diving into the water to assist Rocque Seguin. Tiffany does not remember anything that happened in between those two events during the afternoon of June 15, 2009. Tiffany remembers in “snap shots”, “visions”, as she put it, isolated events such as hitting the water when she dove into it; she remembers being on the telephone with 911; she remembers doing CPR on Rocque Seguin and having to put water in her mouth to wash Rocque Seguin’s blood out of her mouth when she was performing mouth-to-mouth resuscitation on him. Tiffany remembers being in the ambulance; she remembers seeing the paramedic Don Hallett; she remembers trying to blow into the approved screening device at the back of the ambulance, but being unable to do so because “I couldn’t catch my breath”. Tiffany does not remember talking to either Constable Ariss or Becky Demers at the dock at the landing. Tiffany does not recall her father, Kelly McMillan, being there and has no recollection of how the boat got to the Lake Lauzon landing near Algoma Mills. Tiffany MacMillan does not know who was driving the boat when it hit Rocque Seguin. Tiffany does not know whether she was driving or not.

[32] The accused testified which brings the principles of R. v. W.(D.) (D.W.) 1991 93 (SCC), [1991] 1 S.C.R. 742 into play. In that Supreme Court of Canada case, Cory, J. writing for the majority of the court, stated at paragraph 28 of that decision:

“Ideally, appropriate instructions on the issue of credibility should be given, not only during the main charge, but on any recharge. A trial judge might well [page 758] instruct the jury on the question of credibility along these lines:

First, if you believe the evidence of the accused, obviously, you must acquit.

Second, if you do not believe the testimony of the accused, but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

If that formula were followed, the oft repeated error which appears in the recharge in this case would be avoided. The requirement that the crown prove the guilt of the accused beyond a reasonable doubt is fundamental in our system of criminal law. Every effort should be made to avoid mistakes in charging the jury on this basic principle.”

[33] Both crown and defence counsel agree that it is the third test in paragraph 28 of R. v. W.(D.) that applies to the case at bar, namely, even if the court is not left in doubt by the evidence of the accused, the court must be convinced, on the evidence the court accepts, beyond a reasonable doubt of the guilt of the accused. Considering the totality of all the evidence, I must be convinced beyond a reasonable doubt that Tiffany MacMillan was the driver of the boat when it struck and caused the death of Rocque Seguin.

[34] After the accident on the landing and dock at the Algoma Mills entrance at Lake Lauzon, Tiffany MacMillan made statements to the paramedics John Spina and Derrick Bates, to her friend Becky Demers and to the O.P.P. Officer Constable Salim Ariss, which, taken at face value, would indicate that she was the operator of the boat. Constable Ariss described Tiffany MacMillan as being in a “hysterical” state at that point in time. At the Lauzon Lake landing, Constable Ariss did not conduct an extensive investigation to determine whether in fact Tiffany MacMillan was the driver of the boat. Constable Ariss did not interview the boat owner, Matt Gosselin, who was in the boat at the time Rocque Seguin was struck. In fact, Mr. Gosselin was not interviewed by the Ontario Provincial Police until some 7 or 8 days after June 15, 2009 and after chargers had been laid against Tiffany MacMillan. Constable Ariss made Tiffany MacMillan the sole suspect after smelling alcohol on her breath and in reliance on statements made by her at the Lauzon Lake dock and landing.

[35] Constable Ariss testified that Tiffany MacMillan said to him, “I don’t want to go to jail.” Constable Ariss asked Tiffany how much she had to drink and Tiffany replied “four drinks”. Constable Ariss asked Tiffany if she was the driver and Tiffany replied, “Yes.” Constable Ariss indicated in his evidence that the scene at the dock was “chaotic” and that “I was quite overwhelmed.”

[36] The paramedic, John Spina, indicated that while she was on the dock at the Lauzon Lake landing, Tiffany stated that “I killed him.”, referring to Rocque Seguin and Mr. Spina indicated that “I believe she said she was driving.”

[37] Derrick Bates was John Spina’s paramedic partner on June 15, 2009 and they both arrived at the Lauzon Lake landing near Algoma Mills together. In his testimony, Mr. Bates indicated that Tiffany MacMillan made the statement “Oh my God. I’ve hit him. I’ve killed him.”

[38] Donald Hallett is a paramedic who arrived on the scene at the Lake Lauzon landing in a second ambulance at 6:16 p.m. on June 15, 2009. Tiffany MacMillan knows Mr. Hallett’s daughter and called out to him by name. Mr. Hallett testified that Tiffany said to him, “It’s all my fault. Everybody is going to hate me.” Later on, Tiffany said to Mr. Hallett, “I do not want to go to jail. I am not a bad person.”

[39] The court dealt with the issue of the reliability of these statements in its decision on the voir dire with respect to the application brought by the accused under s. 8 of the Canadian Charter of Rights and Freedoms. In that decision, the court grappled with how much reliance you could put on the statements made by Tiffany MacMillan just following the accident and death of Rocque Seguin given the upset, and hysterical state she was in at the time. Tiffany MacMillan was described as being in “a state of shock” while she was on the Lauzon Lake boat landing.

[40] It is worthwhile repeating the comments which I made on November 28, 2013 when I delivered my decision on the Charter application:

“How much reliance should be placed on the statement of Tiffany MacMillan that she was the driver of the boat given the upset, hysterical state she was in? One of the paramedics who first arrived at the dock on Lake Lauzon, John Spina, testified that he felt you “could not rely on anything she said because of her mental state.” Mr. Spina found Tiffany MacMillan in “extreme distress”. That view was shared by another paramedic, Donald Hallett, who was the second ambulance at the scene and transported Ms. MacMillan to the hospital. I must say that I found Mr. Hallett to be an extremely credible witness. He gave his evidence in a thoughtful and deliberate manner. Mr. Hallett was careful in his answers to ensure the accuracy of his testimony, for example, wanting to refer to his records to get times correct. Mr. Hallett agreed to the suggestion put to him in cross-examination that if Tiffany MacMillan was part of the rescue of Mr. Seguin, that this would be a traumatizing event for her, the effects of which would still be felt given the horrific nature of the injuries sustained by Mr. Seguin. Mr. Hallett agreed with the suggestion put to him in cross-examination that it was possible that Tiffany MacMillan was not thinking clearly about what she was saying, calling into question the reliability of the statements that she made.

The sole paramedic who did take the position that the statements of Tiffany MacMillan, given the afternoon of June 15, 2009, were totally reliable was Derrick Bates. I find it difficult to accept this as a logical conclusion given the events which must have occurred during the afternoon of June 15, 2009 and the state of Ms. MacMillan, which has been described as “hysterical” and a “state of shock”. It is difficult to accept that all of the statements made by Ms. MacMillan that afternoon would pass the test of reliability given the fact that Ms. MacMillan was telling Constable Ariss to go into the water and perform CPR on Rocque Seguin when clearly Mr. Seguin was deceased and on the dock with a sheet covering what was left of his body.

I do not accept that a clear-thinking person, in charge of all her faculties, would make statements as bizarre as that.

The evidence of Constable Ariss on the reliability that he placed on the statements of Tiffany MacMillan during the afternoon of June 15, 2009 is conflicting and, quite frankly, I find it hard to reconcile the testimony on this point that he gave on March 28, 2011 before Mr. Justice Koke; with the testimony he gave on May 24, 2011 before Mr. Justice McMillan; and the testimony he gave before me on November 25, 2013. Constable Ariss’ testimony on the point of the reliability of the statements given by Tiffany MacMillan is set out in the March 28, 2011 transcript from page 28, line 23 to page 30, line 1. In that testimony, Constable Ariss indicated that he felt that absent any corroboration that the statements made by Tiffany MacMillan were unreliable.

In the voir dire before Mr. Justice McMillan on May 24, 2011, Constable Ariss testified that he found the statements made by Tiffany MacMillan reliable. When asked about the inconsistency in this, given his previous testimony of March 28, 2011, Constable Ariss stated: “Now that I’ve had time to review the transcript, I disagree with it.” Constable Ariss indicated that he made a mistake in his previous evidence. “I made a mistake. I probably didn’t listen to your question properly. I didn’t understand that question you asked.” This evidence before Justice McMillan is found in the May 24, 2011 transcript at page 46, Line 15 to page 49, line 30.

On the voir dire before me, Constable Ariss adopted the evidence that he gave on May 24, 2011 before Justice McMillan, namely, that he found that the statements made by Tiffany MacMillan to be reliable, and that he was mistaken in the evidence that he gave on March 28, 2011 on this point.

The inconsistencies in the evidence given by Constable Ariss as to the reliability of the statements provided by Tiffany MacMillan are difficult to reconcile. I have reviewed the transcript of the March 28, 2011 proceeding before Koke, J. in detail. I see nothing confusing about the series of questions posed to him by Mr. Orazietti that led to this exchange:

“Q. Yeah, okay. And, so, what I’m suggesting to you that that was very unreliable information at that point, absent any confirmation or corroboration by anybody. Do you agree with that?

A. All I could go at the time was that she stated she was operating, she was the driver.

Q. That wasn’t my question. I’ll repeat it.

A. Okay.

Q. My question was, in those circumstances, absent any corroboration, do you not agree that that was very unreliable information?

A. Possibly, yes.

Q. What do you mean possibly? Is it or isn’t it unreliable information?

A. Yes.”

I find it difficult to accept Constable Ariss’ explanation that he did not understand the question posed to him by Mr. Orazietti. I also find the response to the inconsistency by Constable Ariss that he “made a mistake” to be an equally unsatisfying explanation to the inconsistency in his March 28, 2011 and May 24, 2011 evidence as to whether the statements of Tiffany MacMillan were reliable.

In taking into account the totality of the evidence, including the evidence of John Spina and Donald Hallett on the likely unreliability of any statement made by Tiffany MacMillan, given her mental state during the afternoon of June 15, 2009, it was not reasonable for Constable Ariss to either suspect or believe that Tiffany MacMillan was the driver of the boat on either a subjective or objective test, solely based on the statements made by her without any other evidence as to the driver of the boat.

Accordingly, it is my view that although Constable Ariss had a basis to have reasonable grounds to suspect that Tiffany MacMillan had consumed alcohol and that the vessel had been operated within the preceding three hours, he did not have reasonable grounds to either suspect or believe that Tiffany MacMillan was the operator of the boat based on the statement made by her, which I find under the circumstances, could not be relied upon to form the reasonable suspicion or a reasonable belief.”

[41] With the above analysis, I concluded that the accused’s Charter rights under s. 8 of the Canadian Charter of Rights and Freedoms had been breached, although I permitted the results of the Intoxilyzer breath tests on a s. 24(2) analysis.

[42] The only additional evidence with respect to the statements made by Tiffany MacMillan at the landing at Lauzon Lake after the accident that was not tendered at the voir dire, but at the trial proper, was the evidence of Becky Demers. That evidence, along with the evidence of Constable Ariss, John Spina, Derrick Bates and Donald Hallett, must be considered by the court. Becky Demers testified that she considered Tiffany MacMillan to be her best friend on June 15, 2009. Becky testified that after she arrived at the Lake Lauzon landing she went over and hugged Tiffany. Tiffany was visibly upset and crying. Tiffany told Becky that “she was driving at the time.” Becky indicated in her evidence that Tiffany only once made the comment that she was driving the boat while on the Lake Lauzon landing. In the statement that Ms. Demers gave to the police shortly after the June 15, 2009 incident, she indicated that Tiffany said “that she hit him” and that “she would have to live with this the rest of her life.”

[43] Becky Demers testified to the fact that she was heavily under the influence of alcohol from what she consumed that morning and afternoon, although she told the court by the time she as at the Lake Lauzon landing, “I definitely sobered up by then.” Tiffany MacMillan was so heavily under the influence of alcohol when she made the statements to Becky Demers that she remembers very little of what happened that afternoon and Becky Demers was equally under the influence of alcohol when she received the statements which she attributes to Tiffany MacMillan.

[44] I have considered all the evidence pertaining to the statements made by Tiffany MacMillan at the landing at Lake Lauzon shortly after the accident that claimed the life of Rocque Seguin. This is the evidence both on the voir dire, which is applied to the trial and the evidence on the trial proper. The totality of this evidence does not persuade me to alter the conclusion I arrived at on the voir dire, namely, that given the emotional state of Tiffany MacMillan at the time, no reliability should attach to the statements made by her at the landing on Lake Lauzon shortly after the accident.

[45] Ashley Roy and Becky Demers went for a walk in the Forest Glen Subdivision of Blind River, Ontario with Tiffany MacMillan after the events of June 15, 2009 and shortly after the funeral for Rocque Seguin. Ashley Roy is 22 years of age, making her three years younger than Tiffany MacMillan. Ashley and her family moved into the Forest Glen Subdivision in Blind River, Ontario when Ashley was in Grade 10. Ashley testified that shortly after the accident, she, Becky Demers and Tiffany MacMillan went for a walk in the Forest Glen Subdivision. Ashley estimated that the duration of the walk was between 20 to 30 minutes. Ashley indicated that during the walk, Tiffany did not seem herself – “she was not how she usually was”, as Ashley put it. Ashley indicated that Tiffany seemed down. She seemed upset. Ashley cannot recall all the details between the three of them that afternoon, but does recall Tiffany saying that “she was not going to drink again”, and that “she had to live with this the rest of her life.”

[46] Becky Demers also testified with respect to the walk in Forest Glen with Tiffany MacMillan and Ashley Roy. Becky testified that during the walk, Tiffany discussed the accident indicating that “she would have to live with this the rest of her life” and made other statements such as “it wasn’t right for her to smile because he couldn’t smile” and that “she had a hard time on Father’s Day because he couldn’t be with his dad” and that she “would never have alcohol again”.

[47] The statements that Becky Demers attributed to Tiffany MacMillan are wider in scope than the statements related to the court by Ashley Roy, but the tenor of the statements clearly is that Tiffany MacMillan regretted the accident and that it would be with her for as long as she lives.

[48] Both Ashley Roy and Becky Demers acknowledged in their evidence that during their walk with Tiffany MacMillan in the Forest Glen Subdivision of Blind River, that Tiffany did not make any comment that she was driving the boat and in no way suggested or acknowledged that she was driving the boat.

[49] The crown suggests that the statements made by Tiffany MacMillan during the Forest Glen walk are statements that a person who was the driver of the boat would make – that she would have to live with this the rest of her life – and that she would not drink again. The crown suggests that these are the statements of a person who accepted responsibility for the accident and I can infer from these statements that Tiffany MacMillan was the operator of the boat when it struck Rocque Seguin.

[50] In my view, these statements are equally the statements that could be made by someone who was the spotter or lookout in the boat and not necessarily the driver of the boat. The spotter had a responsibility to keep track of Rocque Seguin in the water and to ensure his safety. The spotter, as well as the driver, could make statements that they would have to live with this the rest of their life or that they would not consume alcohol again. Both the driver of the boat and the spotter in the boat had a responsibility to ensure that Rocque Seguin was safe in the water. Both the driver and the spotter let him down.

[51] I am not prepared to infer that the statements made by Tiffany MacMillan on her walk with Ashley Roy and Becky Demers support the contention that she was the driver of the boat at the time of the accident involving Rocque Seguin. The statements, in my view, could have equally been made by a person who was the spotter or lookout in the boat, lost sight of Mr. Seguin and rightly accepts responsibility.

[52] On the last trip out from the MacMillan camp, the only three people on the boat were Rocque Seguin, Tiffany MacMillan and the owner of the boat, Matt Gosselin. Mr. Gosselin gave evidence at the trial. It was his evidence that Tiffany MacMillan was the driver of the boat at the time it struck Rocque Seguin.

[53] In his evidence, Mr. Gosselin confirmed that he and Brad Horton picked up Tiffany MacMillan and Becky Demers at the MacMillan residence on June 15, 2009. A day on the boat, in the water at Lake Lauzon had been planned for several days. From the MacMillan residence, the four proceeded to the Beer Store where one of the girls purchased a hat. From the Beer Store, the four went to the Seguin home, the home of the parents of Stephane Seguin and Rocque Seguin. Mr. Gosselin testified that they were at the Seguin home for 20 to 30 minutes before heading to the Lauzon Lake landing.

[54] Matt Gosselin confirmed in his evidence that it was his boat that was used on June 15, 2009. The boat was at the Seguin home, hooked up to Rocque Seguin’s truck. Matt testified that this boat was purchased by him in September, 2008 and from that time to June 15, 2009, that he used the boat less than ten times.

[55] It was the evidence of Matt Gosselin that it was Rocque Seguin who drove the boat throughout the afternoon. Matt testified that Rocque did not water ski or wake board during the afternoon of June 15, 2009 until the boat left the MacMillan cottage for the last time later that afternoon. Matt indicated that when he and Rocque Seguin went out on the boat that Rocque always drove the boat – he enjoyed driving the boat.

[56] After the boat left the MacMillan dock for the last time, Matt Gosselin was knee boarding, Rocque Seguin was driving and Tiffany MacMillan was being the lookout, according to the evidence of Matt Gosselin. At some point, Matt Gosselin stopped knee boarding. According to Mr. Gosselin, he indicated that he was too tired to continue on and suggested that they return to the MacMillan cottage to join everyone else. Mr. Gosselin testified that Mr. Seguin wanted to water ski before returning to the dock.

[57] According to the evidence of Matt Gosselin, he was in the back left seat of the boat when Rocque Seguin was in the water and Tiffany MacMillan was on the right-hand side of the boat, in the driver’s seat. The ski rope was curled to the right and Rocque Seguin was on the left-hand side of the boat. Matt Gosselin testified that Tiffany MacMillan curled the boat out to the right and made a full loop to come back. The nose of the boat was up in the air and Matt Gosselin indicated that he lost sight of Rocque over the top of the boat. At that point, the boat was proceeding in a straight line and Mr. Gosselin heard a loud noise – like a “clunk – like something hitting the bottom of the boat” at which point Tiffany MacMillan screamed and said “I didn’t see where he went.” Matt Gosselin indicated in his evidence that he saw Rocque Seguin floating in the water behind the boat. He said, “There he is.” and Tiffany turned around and saw Rocque Seguin and screamed again.

[58] Matt Gosselin testified that once he saw Rocque Seguin in the water, he proceeded forward in the boat, shut the motor off with the key. At that point, Tiffany MacMillan was standing right beside the driver’s seat facing backwards at which point Tiffany jumped into the water to attempt to rescue Rocque Seguin.

[59] Matt Gosselin gave evidence about what occurred from that point onward, as to getting Rocque Seguin into the boat, attempts to revive him by Tiffany MacMillan performing CPR and the travel to the Lauzon Lake landing with Kelly McMillan in the boat and being met by the paramedics at the landing. I do not intend to repeat his evidence in detail from the point Tiffany MacMillan dove into the water after Rocque Seguin was hit. Suffice it to say, that the important elements of Mr. Gosselin’s evidence are up to and during the time he places Tiffany MacMillan as the driver of the boat at the time Rocque Seguin was struck. It is clear that the evidence of Matt Gosselin is that Tiffany MacMillan was the driver of the boat when Rocque Seguin was hit.

[60] Tiffany MacMillan and Matt Gosselin were the only two people with Rocque Seguin when he lost his life. When Tiffany MacMillan gave her evidence, she did so with difficulty. She was often in a state of upset, crying and on occasion was sobbing to the point of having to put her face in both her hands with her head down. It was obvious that the events of June 15, 2009 had a profound effect on her. Tiffany MacMillan gave her evidence in an animated, emotional manner; Matt Gosselin can best be described as robotic in the manner in which he gave his evidence. Even when he was describing retrieving the body of Rocque Seguin from the water and attempts to revive him, his evidence was devoid of emotion. It was as if Matt Gosselin was giving a sanitized version of the events.

[61] When the evidence of Matt Gosselin is scrutinized, there are contradictions and inconsistencies in his evidence that are difficult to reconcile. There is some question about how much Matt Gosselin had to drink during the afternoon of June 15, 2009 leading up to the accident. Mr. Gosselin testified that he “was in fine condition”, as he put it and had not had anything to drink. Mr. Gosselin then said he could have had “a couple of drinks” throughout the afternoon. Mr. Gosselin then testified that he opened a large can of beer but didn’t finish it. The court was certainly left with the impression from the evidence of Matt Gosselin that he had little to drink that afternoon and that alcohol was not a problem for him that afternoon. This evidence is directly contradicted by Becky Demers, who testified that Matt Gosselin was drinking beer and that “he was pretty drunk as well.” Ms. Demers acknowledged in cross-examination that “there is no doubt that Matt Gosselin was drunk out there on that lake.” This evidence of Ms. Demers is consistent with what she told the police who interviewed her within a week after the accident. At page 28 of her written statement provided to the police, Becky Demers indicated that Matt Gosselin was pretty drunk. She has been consistent in that evidence from the outset.

[62] Then there is the conflicting evidence of whether Matt Gosselin operated his boat at any time on Lake Lauzon earlier that afternoon. Mr. Gosselin testified that he did not. In his statement to the police, Stephane Seguin told the police that Matt Gosselin drove the boat for his brother Rocque earlier that afternoon when Rocque was slalom skiing. In his evidence at the trial, Stephane Seguin testified that Brad Horton or Matt Gosselin could have driven the boat for Rocque when he was skiing and at the time, Rocque was slalom skiing, that he was “not one hundred per cent sure who was driving the boat.” It was Mr. Gosselin’s evidence that Rocque Seguin did not ski earlier in the day. ‘

[63] There is contradictory evidence from Matt Gosselin as to where Rocque Seguin was in the water when he last saw him prior to the accident occurring. In his evidence at the trial, Mr. Gosselin testified that Rocque was 24 feet away from the boat when he noticed him and lost sight of him in the water. At page 39 of the statement that he gave to the police, Matt Gosselin said “I saw him when he turned and he was swimming toward the side of the boat. The last time I saw him, he was on the side – he was like right there.” This is not a description that suggests that Rocque Seguin was 24 feet from the boat, which Matt Gosselin suggested when he gave evidence at the trial.

[64] Matt Gosselin testified that he was a novice about water skiing; that he did not know much about water skiing. As Mr. Gosselin put it in his evidence – “I never pulled a skier in my life. I didn’t do that.” On pages 6, 7 and 8 of the statement that Mr. Gosselin gave to police, he goes on in detail about how to manoeuver the boat for water skiing and what to do with the rope. This is hard to reconcile with the statement by Mr. Gosselin that he didn’t know anything about water skiing or pulling a water skier behind a boat.

[65] In his evidence, Matt Gosselin places himself on the left-hand side of the back of the boat, where there is not a seat or obstacles and impediments and places Tiffany MacMillan in the driver’s seat which is a closed-in area with obstructions to the right and the left. There are certainly more obstructions around the driver’s seat than there are on the left-hand side of the boat. This fact is readily apparent by examining photographs 0004, 0009, and 0010 of the trial photo book entered as Exhibit 3. Mr. Gosselin testified that Tiffany MacMillan was first in the water after Rocque Seguin was hit. Mr. Gosselin’s evidence was that Ms. MacMillan said to him that she was a lifeguard and would go in first. To quote Mr. Gosselin as to what was said by Tiffany MacMillan – “I am a lifeguard. I will go get him.” Mr. Gosselin was evasive in his answer to the proposition put to him in cross-examination that it would be easier for the person in the back to get into the water first. Initially, Mr. Gosselin didn’t respond to the question. Then he stated, “This all happened very fast.” From an examination of the photographs of the interior of the boat in Exhibit 3, there is legitimacy to the suggestion that it would be easier for the person in the back of the boat to get into the water first than it would be for the person who was at the driver’s seat of the boat. I also have difficulty accepting as plausible that in the moment of what was experienced given the horrific accident and the aftermath, that Tiffany MacMillan would take the time to announce that she was a lifeguard and, because of this, would go in the water first. Given the events of what just occurred, I find it difficult to accept that this would have occurred.

[66] What Mr. Gosselin does accept, as do all the other witnesses who were at Lake Lauzon that afternoon, and called to give evidence, is that Tiffany MacMillan was not driving the boat earlier in the day on June 15, 2009 and was not driving the boat when the boat left the MacMillan dock for the last time that afternoon. Matt Gosselin testified that Tiffany MacMillan wanted to drive the boat – that she asked to drive the boat. Tiffany MacMillan testified that she had never driven a boat before in her life. At her parents’ cottage, her driving on the water was with jet skis but not with a boat. Tiffany’s father, Kelly McMillan, testified that he had never seen Tiffany drive a boat before. He described her boating experience as being “nil”. I have no reason to doubt the evidence of Kelly MacMillan that Tiffany MacMillan was an inexperienced boater. Given this fact, does it flow logically that she would ask to operate the boat while Rocque Seguin slalomed skied? Or is it more logical that the person operating the boat would be the older person who was the actual owner of the boat – Matt Gosselin?

[67] I do not know the answers to those questions with any degree of certainty. This is not a civil proceeding where being satisfied on a balance of probabilities, whether an event more likely than not occurred, is the standard. This is a criminal proceeding where all the essential elements of the offence must be proven by the crown beyond a reasonable doubt. This is a high standard and certainly on a much higher standard than proof on balance of probabilities, the civil standard.

[68] Proof beyond a reasonable doubt is a cornerstone of the criminal justice system and it must be respected and applied. The court must apply the third prong of the test in R. v. W.(D.), referred to earlier:

“Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.”

[69] In answering that question, I have considered and weighed the totality of all the evidence that I have heard in this trial. Although I have dealt with only portions and segments of the evidence in my Reasons, in coming to a conclusion, I have considered and reflected upon all of the evidence I have heard on this trial.

[70] Upon reflecting upon that evidence, I cannot conclude with the degree of certainty required in law to establish beyond a reasonable doubt that Tiffany MacMillan was the driver of the boat when it struck and killed Rocque Seguin on Lake Lauzon during the afternoon of June 15, 2009.

[71] An essential element of the charges in counts 1 and 2 of the indictment dated September 30, 2010 is that the crown establish beyond a reasonable doubt that Tiffany MacMillan had care and control of the vessel, meaning that she was the operator of it. For the Reasons set out, the crown has failed to establish this beyond a reasonable doubt.

[72] This court’s decision is not to be taken as condoning what occurred on Lake Lauzon on June 15, 2009 or to condone the consumption of alcohol and the operation of a boat. My decision is also not to be taken to minimize what occurred or the tragic consequences of what occurred. Rocque Seguin suffered a horrific, unnecessary death. The loss of his life to his parents, his family and friends must be profound. The natural order of things is disrupted when a parent loses a child. The sense of loss and grief felt by Mr. Seguin’s parents is unimaginable. In making my decision, I am painfully aware of this.

[73] Tiffany MacMillan and Matt Gosselin were the only people with Rocque Seguin on the last run in the boat on Lake Lauzon on June 15, 2009. They both must accept a moral responsibility for what occurred and undoubtedly this accident will follow with them throughout the rest of their lives. I am bound to apply the law and in doing so, on the facts of this case, I cannot say that the state has proven Tiffany MacMillan’s guilt beyond a reasonable doubt with respect to the charges set out in the indictment dated September 30, 2011.

[74] Accordingly, there will be a finding of not guilty on counts 1 and 2 in the indictment and an acquittal registered.

Justice E. Gareau

Released: December 19, 2013

COURT FILE NO.: 7144

DATE: 2013-12-19

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

TIFFANY MACMILLAN

REASONS FOR JUDGMENT

Justice E. Gareau

Released: December 19, 2013