ONTARIO
SUPERIOR COURT OF JUSTICE
CITATION: R. v. ANDREW IAN RANGER, 2015 ONSC 1158
COURT FILE NO.: 11167
DATE: 2015/03/13
B E T W E E N:
HER MAJESTY THE QUEEN
Steve Monaghan and Elizabeth Maguire, for the Crown
- and -
ANDREW IAN RANGER
Scott Cowan, for the accused
HEARD: June 24, 25, 26 and 27, 2013, and September 17 and 18, 2014
LEACH J. (ORALLY)
Overview
[1] By way of overview, the accused, Andrew Ian Ranger, is charged with nine Criminal Code offences. These are particularized in the indictment, but generally involve:
• three counts of impaired driving causing bodily harm, contrary to s.255(2);
• three counts of dangerous driving causing bodily harm, contrary to s.249(3); and
• three counts of driving with a blood alcohol concentration exceeding 80mg of alcohol in 100ml of blood causing bodily harm, contrary to s.255(2.1).
[2] The charges stem from a very serious motor vehicle accident that is admitted to have occurred on Saturday, February 12, 2011. Evidence in that regard is outlined in greater detail below.
[3] In broad terms, however, the basic timing and mechanics of the relevant accident were not really disputed, and in my view, repeatedly were confirmed in various ways by the numerous lay and expert witnesses called at trial. In particular:
• Late in the afternoon on the day in question, the accused Mr Ranger was driving his Dodge Caravan east on a portion of Highway No. 2, (also known as Dundas Street), where it runs through the Municipality of Thames Centre, a small rural community located between the cities of London and Woodstock.
• At the same time, a gentleman named Joao Medeiros was driving his Chevrolet Astro van in the opposite direction, (i.e., heading west), along the same highway, in the same area. Travelling with Mr Medeiros, as a front seat passenger, was his mother-in-law, Maria Pimental.
• At the same time, following a number of car lengths behind the Medeiros vehicle, on the same stretch of highway, was another westbound vehicle; i.e., a Jeep Liberty being driven by a gentleman named Owen McCarthy. Travelling with Mr McCarthy, as a front seat passenger, was his spouse, Mary Lou McCarthy. The couple also had two dogs with them, in the rear of their vehicle.
• At a point on Highway No. 2 east of its intersection with Shaw Road, and west of its intersection with Fairview Road, there was a head on (but not perfectly aligned) collision between the Ranger and Medeiros vehicles. The reasons for that initial collision, the precise location of the impact between the vehicles, and, in particular, the lane in which each of the vehicles was travelling at the time of that initial collision, were very much in dispute – and, as noted in more detail below, formed the central focus of the trial before me.
• In the wake of that initial collision, the Ranger vehicle continued moving forward, albeit in a southeasterly direction, where it came to a rest on the south shoulder of the highway, whereas the Medeiros vehicle initially rotated in a counter-clockwise direction to some degree, and because of that rotation and possible reverse movement, blocked the path of the McCarthy vehicle. In a secondary collision that occurred almost immediately after the first, and accentuated the counter-clockwise spin of the Medeiros vehicle, the front of the McCarthy vehicle then struck the Medeiros vehicle on its left rear side. When they came to rest, the McCarthy vehicle was in the westbound lane facing west, (the same direction in which it had been travelling), and the Medeiros vehicle was in the eastbound lane, between the Ranger and McCarthy vehicles, facing northwest; i.e., apparently having completed most of a full counter-clockwise rotation from its earlier direction of travel.
[4] The general parameters of the incident described above were confirmed and supplemented to some extent by an “Agreed statement of fact” (sic) filed by the Crown as a consent exhibit. It reads, in its entirety and original form, (with original capitalization, grammar, spelling errors and punctuation, or lack thereof), as follows:
Agreed statement of fact
R v. Ranger
February 12, 2011
6pm
Andrew Ranger, age 50 driver of Black dodge Caravan
Driving on Dundas st. East near shaw Road
Mr. Ranger’s vehicle was involved in a head on collision with and Astrovan headed Westbound on Dundas St. being driven by Joao Medieros 57 years with Maria Pimental in the passenger seat 82 years
A third vehicle, that had been following Medieros westbound was driven by Owen McCarthy with Mary lou McCarthy in the passenger seat
Mr. Ranger admitted to Pc Reinjtes that he had been drinking
Blood from Mr. Ranger, Drawn at 7:03pm February 12, 2011 was analysed by the Centre of Forensic sciences and was found to have a concentration of alcohol of 214 mg in 100 mL of blood
Injuries: Medeiros suffered life threatening injuries with a broken sternum, left leg nearly severed below the knee, he was paralysed as a result of the injuries
Maria Pemental suffered a broken left leg, broken left arm and a severe laceration to her scalp.
Owen McCarthy suffered an abrasion to his right hand and whiplash
Mr Ranger suffered a broken neck, broken back in three places, broken pelvis broken left leg, and broken left arm.
Evidence – General Comments
[5] At trial, the Crown supplemented the aforesaid agreed statement of facts by presenting testimony from the following witnesses:
• Joao Medeiros, (who testified through a sworn Portuguese interpreter);
• Marie Pimental, (who also testified through the same Portuguese interpreter);
• Owen McCarthy;
• Mary McCarthy;
• Manny Branco, (driver of another eastbound vehicle on Highway No. 2, and the first additional vehicle to come upon the accident scene from the west);
• Phil Borland, (a front seat passenger in the Branco vehicle);
• Aaron Dietrich, (a back seat passenger in the Branco vehicle);
• Dennis Scott, (driver of another eastbound vehicle on Highway No. 2, and the second additional vehicle to come upon the accident scene from the west);
• Peter Jan Reintjes, a uniformed constable with the Ontario Provincial Police, who was the first police officer to arrive at the accident scene, and who thereafter acted as an investigating officer; and
• George Walker, another constable with the Ontario Provincial Police, whose primary function at the time of the accident was collision investigation and reconstruction, and who was permitted, after contested application of the criteria set forth in R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9, to provide expert opinion evidence in the areas of collision reconstruction, collision analysis and slide to stop calculations.
[6] On consent, and/or through its witnesses, the Crown also entered numerous exhibits, including:
• photographs, (in hard copy and electronic format), of the accident location and scene, vehicle damage and injuries;
• a curriculum vitae, post collision diagram, (in colorized and black and white format), total station survey report, and collision reconstruction report, all prepared by Constable Walker; and
• a statement of qualifications and reporting letter prepared by Rachelle Wallage, (a forensic scientist working in the Toxicology Section of the Centre of Forensic Sciences), indicating the results of analysis carried out in relation to a blood sample collected from Mr Ranger approximately one hour after the accident, and setting forth her expert scientific opinion that an individual with a blood alcohol content within the ranges projected for Mr Ranger at the time of the accident would be impaired in their ability to operate a motor vehicle.
[7] In addition to subjecting the Crown’s viva voce witnesses to cross-examination, the defence elected to call one witness: Barry Raftery, a forensic engineer specializing in accident reconstruction.
[8] Following application of the aforesaid criteria in R. v. Mohan, supra, Mr Raftery was permitted to provide expert opinion evidence in the areas of interpretation of collision scene evidence from police photographs and survey data, speed calculations, vehicle dynamics, (i.e., the manner in which a vehicle will move as a result of forces applied to it), and the determination of vehicle position on a roadway from a review of collision scene evidence.
[9] Through Mr Raftery and/or on consent, the defence also entered additional exhibits prepared by Mr Raftery, including a curriculum vitae, additional copies of photographs taken by the police, (with select photographs isolated and/or enlarged), and numerous diagrams depicting, amongst other things: alternative possible alignments of the Medeiros and McCarthy vehicles at the time of the secondary collision; the collision scene, (including enlarged depiction of the accident-related roadway markings documented by the police); the suggested alignment of the Ranger and Medeiros vehicles at the time of their initial contact; and alternative positions of the Ranger and Medeiros vehicles at the time of the initial collision.
[10] Although the vast majority of witnesses in the trial before me therefore were called by the Crown, and much of the remaining evidence presented at trial emanated from police witnesses or expert witnesses employed or consulted by the police, I have in mind throughout my entire reasons and analysis the presumption of innocence and the burden of proof upon the Crown.
[11] In that regard, according to the constitutional guarantee in s.11(d) of the Charter of Rights, Mr Ranger is presumed to be innocent, and that presumption of innocence remains with him throughout this matter, from beginning to end, unless and until the Crown establishes his guilt with respect to any and all of the alleged offences beyond a reasonable doubt.
[12] In particular, the Crown must prove the essential elements of the offences charged beyond a reasonable doubt, although that standard applies to the evidence as a whole, and not to individual pieces of evidence or individual witnesses, even experts. See R. v. Smith, 2001 CanLII 20968 (ON CA), [2001] O.J. No. 4981 (C.A.), at paragraph 116.
[13] The Crown’s burden of proof is a heavy one and, in relation to the elements of the charges against Mr Ranger that are not admitted, never shifts.
[14] The accused Mr Ranger accordingly has no obligation whatsoever to establish his innocence, and I accordingly attach no significance to the fact that he gave no evidence at trial, although pursuant to R. v. Noble, 1997 CanLII 388 (SCC), [1997] 1 S.C.R. 874, I have taken into account that certain evidence presented to me, (e.g., in relation to certain conduct and statements attributed to Mr Ranger on the day in question), stands uncontradicted in the sense that there is no other evidence to consider in relation to such matters.
[15] Moreover, it is trite law that a trier of fact, (in this case myself), is duty bound to consider carefully, and with an open mind, all the evidence presented at trial, (including witnesses, exhibits and admitted facts), but is also entitled to make an independent assessment of the evidence, including how much or little reliance should be placed upon the testimony of any witness or witnesses. That determination does not necessarily depend on the number of witnesses who testify, one way or the other. The trier of fact therefore is entitled to decide that the testimony of fewer witnesses, or perhaps even just one witness, is more reliable than the evidence of a larger number of witnesses.
Party Positions
[16] Before turning to the issues and evidence in greater detail, I think it advisable to comment at some length on the overall position of the parties, particularly insofar as various comments made by counsel during the course of trial strongly suggested that Mr Ranger was prepared to admit some essential elements of the offences with which he is charged.
[17] In that regard:
• At the outset of trial, (immediately after Mr Ranger was arraigned and entered his formal plea of “not guilty” in relation to each of the nine counts on the indictment), defence counsel rose and made reference to the aforesaid agreed statement of facts, saying: “You will see that Mr Ranger admits some elements of these counts, and that’s contained in this document. This is to assist the Court in focusing this trial. It is going to be, I believe, a relatively focused trial with an issue of causation in this case.” The agreed statement of facts, and the nature of subsequent examination and cross-examination of witnesses, then seemed to confirm that the trial was focused not just on causation, but on the particular issue of whether or not the Crown was able to prove, beyond a reasonable doubt, that Mr Ranger’s conduct had caused the accident, in the sense of having caused the initial collision between the Ranger and Medeiros vehicles. (In other words, it apparently was not disputed that the second collision between the McCarthy and Medeiros was caused by the first collision, and that the physical injuries sustained by Mr Medeiros, Ms Pimental and Mr McCarthy accordingly were all caused by the first collision.)
• Shortly after the trial resumed, (following an extended interruption), Crown counsel who had assumed carriage of the trial made reference to various aspects of the agreed statement of facts, and expressly questioned whether it would be necessary to call Ms Wallage from the Centre of Forensic Sciences to testify, based on counsel’s understanding that there was “no issue that at the time of the collision the accused was impaired by the consumption of alcohol”, nor any issue “that at the time of the collision his blood alcohol was more than 80 mg of alcohol in 100 mL of blood”. In response, defence counsel indicated that he was content to have the Crown simply file the reporting letter from Ms Wallage, as her provided “range on a read back analysis” and conclusion about impairment were “unassailable”. I then permitted Ms Wallage’s statement of qualification and reporting letter to be filed as exhibits, on consent.
• Immediately after those developments, I reminded defence counsel of his indication at the outset that it would be a trial “primarily concerned with the issue of causation”, at which point defence counsel corrected me to say that it would be a trial “exclusively” about causation. Given that indication, I then expressly asked for clarification as to whether the defence was formally admitting that all other elements of the offences had been established or would be established. In response, defence counsel initially indicated that he would “need to see the indictment” before commenting on “all the elements”, at which point I confirmed that I would not ask for counsel’s answer until the end of trial. However, after a further express observation by defence counsel that one element of the offences included dangerous driving, and another comment suggesting that dangerous driving might not be admitted either, defence counsel then said the following: “So not necessarily all the elements but surely the issue is causation. If he caused the accident ergo it was dangerous based on what that would have meant on these facts. So to work backwards yes, once you get past causation”. In other words, defence counsel seemed to be indicating that, if and when I made a determination that the Crown had proven beyond a reasonable doubt that Mr Ranger’s conduct had caused the accident, (but only then), all the essential elements of the various offences should be taken as proved, in the sense required, to warrant a finding of guilt in relation to each count. Notwithstanding that indication, I informed defence counsel that I would let him give further consideration to the indictment, revisit his position if necessary, and otherwise leave the issue of formal admissions to the end of trial.
• At the completion of trial, defence counsel indicated in his closing submissions that he was requesting that Mr Ranger be found “not guilty as charged on all counts”, but then made additional comments indicating that impairment and “over 80”, (i.e., Mr Ranger having a blood alcohol concentration exceeding 80 mg of alcohol in one hundred mL of blood), were conceded, such that there could be a finding of guilt in relation to lesser and included offences in that regard – although defence counsel suggested that there should be a finding of guilt in relation to only one count of impaired driving and one count of driving “over 80”, even before the application of considerations suggested by R. v. Kienapple, 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729. Defence counsel also then confirmed it was common ground that the element of “bodily harm” had been established. In an effort to clarify and confirm the position of the defence, I then asked whether the defence was indicating that if I found Mr Ranger’s conduct in any way caused the accident then there would be a finding of guilty on each of the counts, but if I found that he did not cause the accident, defence counsel was submitting that the proper outcome would be a finding of guilt in relation to one count of impaired driving and one count of driving “over 80”. In response, defence counsel did not expressly say “yes”, but instead simply added that he thought it should probably be a finding of guilt in relation to only one count, and a reminder that Mr Ranger having caused the accident would have to be proved “beyond a reasonable doubt”. He then added: “I think we understand each other on the real issue in this case.”
[18] It seemed reasonably clear to me at the time that the only disputed aspect of the charges against Mr Ranger was whether or not the Crown was able to prove beyond a reasonable doubt that Mr Ranger’s conduct had caused the motor vehicle accident.
[19] Certainly, the closing submissions of defence counsel and Crown counsel both seemed to reflect such an understanding, as they were entirely focused on the question of whether or not it had been proven, beyond a reasonable doubt, that Mr Ranger’s conduct, as a matter of fact, brought about the initial collision between the Ranger and Medeiros vehicles.
[20] In particular, closing submissions focused almost entirely on the lane or lanes in which the Ranger and Medeiros vehicles had been located at the time of their initial impact, (with Crown counsel contending that Mr Ranger had driven his vehicle into the westbound lane in which Mr Medeiros was driving, and defence counsel contending that Mr Medeiros had driven his vehicle into the eastbound lane in which Mr Ranger was driving).
[21] Neither counsel appeared to direct any submissions whatsoever to the wording or essential elements of the various offences with which Mr Ranger was charged.
[22] Nor did either counsel provide me with any authority whatsoever relating to those offences generally or, in particular, to the legal principles governing determination of causation in this context.
[23] As an extended aside:
• I note that the one and only case mentioned during closing submissions was Adams v. Vanthiel, [2007] N.J. No. 434 (T.D.), affirmed [2008] N.J. No. 309 (C.A.). That was a Newfoundland case involving an accident between a plaintiff cyclist and a defendant motorist, in which an issue arose as to whether the defendant driver had any opportunity to avoid the collision. The plaintiff cyclist retained the services of Barry Raftery as an expert, who carried out certain tests and was permitted to provide expert opinion evidence at trial. In the result, the trial judge rejected Mr Raftery’s opinion, preferring the testimony of eyewitnesses and expressly noting that “while the Raftery report poses an interesting theoretical calculation of the dynamics of this collision, I am not satisfied that it jibes with the evidence of the witnesses to the collision … [and] I therefore cannot accept Mr Raftery’s hypothesis”. The decision of the trial judge was upheld by the Court of Appeal for Newfoundland and Labrador, which confirmed the ability of the trial judge to prefer the evidence of the defendant and eyewitnesses, and added that “Mr Raftery’s expert opinion could be no more compelling than the factual assumptions that underpinned it”.
• Defence counsel objected to Crown counsel’s reference to the Adams case, essentially on the basis that it really was being used not as authority for any legal proposition, but as evidence of an additional fact, (i.e., of Mr Raftery’s opinion having been rejected on other occasions), that the court should take into consideration when assessing the weight to be given to Mr Raftery’s testimony and opinion evidence in this case. Viewed in that light, the suggested additional evidence was being tendered not only during closing submissions, but also in suggested contravention of the rule in Browne v. Dunn (1893), 1893 CanLII 65 (FOREP), 6 R. 67 (H.L.), as the matter had never been put to Mr Raftery for comment during the course of his cross-examination.
• Crown counsel responded that the case was being referenced only as authority for the proposition that an expert opinion could be no more compelling than the factual assumptions that underpinned it, and could be rejected by the court if those assumptions were not supported by the evidence, including the evidence of eyewitnesses.
• While Crown counsel’s stated purpose of referring to that particular case was entirely proper, I also think it was right for defence counsel to raise the indicated concerns. In particular, I question whether it was necessary for Crown counsel to cite that particular case from Newfoundland for such a basic and, I think, undisputed and indisputable legal proposition concerning the ability to reject expert opinion if the expert’s underlying factual assumptions have not been proven to the court’s satisfaction. On its face at least, Crown counsel’s decision to cite that particular case in closing submissions, and only that case, seemed driven more by the additional aspect that the court in that case had rejected the opinion evidence of the same expert retained by the accused in the case before me.
• In any event, to be clear, I accept and make use of the Adams case only for Crown counsel’s stated purpose; i.e., emphasizing the legal proposition that the strength of an expert’s opinion is tied to the expert’s underlying factual assumptions, and may be rejected if such assumptions are not accepted by the court; for example, because the court prefers other evidence, such as that of eyewitnesses. For the valid reasons raised by defence counsel, I do not accept or use the court’s particular rejection of Mr Raftery’s expert opinion evidence in the Adams case as any kind of consideration relevant to the acceptance or rejection of Mr Raftery’s expert opinion in this case. More generally, I think it preferable, and my duty, to form my own independent and case-specific view as to whether or not Mr Raftery’s expert opinion should be accepted or rejected in this case.
[24] I return now to the matter of overall party positions, and the general question of the extent, if any, to which the defence in this case has formally admitted or conceded proof beyond a reasonable doubt of essential elements of the various offences with which Mr Ranger has been charged.
[25] As noted above, it seemed reasonably clear to me, particularly at the time of my exchanges with defence counsel, that the only disputed aspect of the various charges against Mr Ranger was whether or not Crown counsel was able to prove, beyond a reasonable doubt, that Mr Ranger’s conduct had caused the initial collision between the Ranger and Medeiros vehicles. My view in that regard was formed not only by way defence counsel was saying, but by the manner in which it was said.
[26] However, on further reflection, and after careful review of the actual answers given by counsel, it seems to me that the indications of possible admissions, (beyond the agreed statement of fact, acknowledged impairment, and an acknowledged blood alcohol concentration in excess of the legal limit), were not as clear as they might have been.
[27] Moreover, it seems to me that there is good reason to doubt whether defence counsel’s conditional admission of “dangerous driving”, (if and when I found that Mr Ranger’s causation of the accident had been proved beyond a reasonable doubt), was a proper concession.
[28] In that regard, as noted above, defence counsel expressly indicated that, if I found it proven beyond a reasonable doubt that Mr Ranger had caused the accident, I could then “work backwards” and also find that Mr Ranger had been engaged in dangerous driving. In particular, according to the submission of Mr Ranger’s counsel, “if he caused the accident ergo it was dangerous based on what that would have meant on these facts”.
[29] In my view, that submission runs directly counter to the proper approach to such issues mandated and repeatedly emphasized by our courts, including appellate authority clearly binding upon me. For example:
• In R. v. R. (R.L.), 1988 CanLII 9882 (ON CA), [1988] O.J. No. 1092 (C.A.), affirmed 1991 CanLII 115 (SCC), [1991] 1 S.C.R. 115, our Court of Appeal indicated, at paragraph 10, that in driving offences of this nature, the first task of the trial judge is to determine whether the accused, in operation of his motor vehicle, was driving it in a manner which constituted dangerous driving preceding the accident. It is only then that an inquiry has to be made as to whether it was, by reason of dangerous driving, that bodily harm ensued; i.e., that bodily harm was caused by the accused’s dangerous driving. The Court of Appeal faulted the trial judge for proceeding as if causation of injury by the manner of the accused’s driving were the sole issue for consideration.
• In R. v. Beatty, [2008] 1 S.C.J. No. 5, at paragraph 46, the Supreme Court of Canada emphasized that, in relation to offences involving dangerous driving, the wording of the relevant Criminal Code provisions makes it plain that it is the manner in which the motor vehicle was operated that is at issue, and not the consequence of the driving. The consequence may make the offence a more serious one, but it has no bearing on whether the offence of dangerous driving has been made out or not. The Supreme Court emphasized the importance of the distinction, noting that, if the focus was improperly placed on the consequence, it “almost begs the question to then ask whether an act” that caused death or bodily harm was dangerous. Accordingly, the Supreme Court emphasized that a court must not leap to a conclusion about the manner of driving based on the consequence. There must instead be a meaningful inquiry into the manner of driving. The consequence may assist in assessing the risk involved, but it does not answer the question whether or not the vehicle was operated in a manner dangerous to the public.
• Similarly, in R. v. Roy, 2012 SCC 26, [2012] S.C.J. No. 26, the Supreme Court of Canada allowed an appeal from the accused’s conviction for dangerous driving causing death because of the trial judge’s error in law in leaping from the consequences of the driving to a conclusion of the requisite fault elements. Repeating its admonition from R. v. Beatty, the Supreme Court emphasized, at paragraphs 34-35, that in considering whether the actus reus of dangerous driving has been established, the question is whether the driving, viewed objectively, was dangerous to the public in all the circumstances. The focus of that inquiry “must be on the risks created by the accused’s manner of driving, not the consequences, such as an accident in which he or she was involved”.
[30] In short, I think it clearly would be an error of law for me to “work backwards”, as defence counsel suggests; i.e., to look first at whether the Crown has proven beyond a reasonable doubt that Mr Ranger’s conduct caused the accident, and based simply on that conclusion, determine whether or not dangerous driving has also been proven beyond a reasonable doubt.
[31] To the contrary, based on the above authorities, when analyzing cases involving an offence simpliciter, (such as dangerous driving, which is a lesser and included offence contained within dangerous driving causing bodily harm), the court must first determine whether the Crown has proven all essential elements of the offence simpliciter before the additional required causation analysis begins. See R. v. Kresko, [2013] O.J. No. 1523, at paragraph 75.
[32] Given such concerns, and the absence of clear and definite answers confirming the precise extent to which the accused in this case was formally admitting the essential elements of the offences with which he is charged, I therefore think it advisable, out of an abundance of caution, to address each such element in the course of my analysis.
[33] Of course, that discussion may be somewhat cursory in relation to some of those essential elements, given the concessions that clearly were made by defence counsel, and the reality that there is nothing to contradict certain evidence.
[34] However, the above explanation indicates why I think the situation requires a more extended discussion than counsel’s repeated reference to a trial focused on causation might otherwise have suggested.
The Offences – Essential Elements
[35] I therefore begin by reminding myself of the nature of each offence charged in the indictment, and the essential elements of each such offence, which Crown counsel is obliged to prove beyond a reasonable doubt.
IMPAIRED DRIVING CAUSING BODILY HARM
[36] In relation to the first three counts of the indictment, (Counts 1, 2 and 3), dealing with impaired driving causing bodily harm, the relevant provisions of the Criminal Code read as follows:
- (1) Everyone commits an offence who operates a motor vehicle … or has the care and control of a motor vehicle … , whether it is in motion or not,
(a) while the person’s ability to operate the vehicle …is impaired by alcohol.
- (2) Everyone who commits an offence under paragraph 253(1)(a) and causes bodily harm to another person as a result is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years.
[37] For me to find Mr Ranger guilty of impaired driving causing bodily harm, Crown counsel therefore must prove each of the following four essential elements beyond a reasonable doubt:
i. that Mr Ranger operated a motor vehicle;
ii. that Mr Ranger intended to operate a motor vehicle after he had consumed alcohol;
iii. that Mr Ranger’s ability to operate a motor vehicle was impaired by alcohol; and
iv. that Mr Ranger’s impaired ability to operate a motor vehicle caused bodily harm to another person.
[38] Proof of the first three essential elements beyond a reasonable doubt would suffice to warrant a finding of guilt in relation to the lesser and included offence of impaired operation of a motor vehicle, pursuant to s.253(1). However, proof of all four essential elements beyond a reasonable doubt is required to warrant a finding of guilt in relation to the offence of impaired operation of a motor vehicle causing bodily harm, pursuant to s.255(2).
DANGEROUS DRIVING CAUSING BODILY HARM
[39] In relation the next three counts on the indictment, (Counts 4, 5 and 6), dealing with dangerous driving causing bodily harm, the relevant provisions of the Criminal Code read as follows:
- (1) Every one commits an offence who operates
(a) a motor vehicle in a manner that is dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place …
(3) Every one who commits an offence under subsection (1) and thereby causes bodily harm to any other person is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.
[40] For me to find Mr Ranger guilty of dangerous driving causing bodily harm, Crown counsel therefore must prove each of the following three essential elements beyond a reasonable doubt:
i. that Mr Ranger operated a motor vehicle;
ii. that Mr Ranger operated the motor vehicle in a manner that was dangerous to the public; and
iii. that Mr Ranger’s operation of the motor vehicle caused bodily harm to another person.
[41] Proof of the first two essential elements beyond a reasonable doubt would suffice to warrant a finding of guilt in relation to the lesser and included offence of dangerous driving, pursuant to s.249(1)(a). However, proof of all three essential elements beyond a reasonable doubt is required to warrant a finding of guilt in relation to the offence of dangerous driving causing bodily harm, pursuant to s.249(3).
DRIVING WITH EXCESSIVE BLOOD ALCOHOL CONCENTRATION CAUSING BODILY HARM
[42] In relation the final three counts on the indictment, (Counts 7, 8 and 9), dealing with driving with excessive blood alcohol concentration causing bodily harm, the relevant provisions of the Criminal Code read as follows:
- (1) Every one commits an offence who operates a motor vehicle …or has the care or control of a motor vehicle …whether it is in motion or not,
(b) having consumed alcohol in such a quantity that the concentration in the person’s blood exceeds eighty milligrams of alcohol in one hundred millilitres of blood.
- (2.1) Everyone who, while committing an offence under paragraph 253(1)(b), causes an accident resulting in bodily harm to another person, is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years.
[43] For me to find Mr Ranger guilty of operating a motor vehicle with an excessive blood alcohol concentration, causing an accident resulting in bodily harm, Crown counsel therefore must prove each of the following four essential elements beyond a reasonable doubt:
i. that Mr Ranger operated a motor vehicle;
ii. that Mr Ranger intended to operate a motor vehicle after he had consumed alcohol;
iii. that when Mr Ranger was operating that motor vehicle, his blood alcohol concentration exceeded 80 milligrams of alcohol in one hundred millilitres of blood; and
iv. that Mr Ranger, while intentionally operating a motor vehicle after consuming alcohol such that his blood alcohol concentration exceeded 80 milligrams of alcohol in one hundred millilitres of blood, caused an accident resulting in bodily harm to another person.
[44] Proof of the first three essential elements beyond a reasonable doubt would suffice to warrant a finding of guilt in relation to the lesser and included offence of driving with an excessive blood alcohol concentration, pursuant to s.253(1)(b). However, proof of all four essential elements beyond a reasonable doubt is required to warrant a finding of guilt in relation to the offence of driving with an excessive blood alcohol concentration and causing an accident resulting in bodily harm, pursuant to s.255(2.1)
Operation of a Motor Vehicle
[45] Mr Ranger’s operation of a motor vehicle is an essential element common to all of the offences with which he has been charged, and I turn to that matter first.
[46] When questioned by Constable Reintjes shortly after the accident, (at approximately 6:30pm on February 12, 2011), Mr Ranger denied that he had been driving.
[47] However, immediately after the accident, a number of witnesses observed Mr Ranger sitting, alone and incapacitated, in the front seat of the Dodge Caravan.
[48] Witnesses in that regard included Phil Borland, (who was one of the first people to come upon the accident scene after the collision, and who identified Mr Ranger as the same driver who had overtaken the Branco vehicle shortly before the accident), as well as Mary McCarthy, (who looked over and noticed Mr Ranger’s vehicle shortly after the accident, with only one occupant, who was “kind of draped over the steering wheel with his head down”.
[49] They also included Constable Reintjes, who noted that Mr Ranger was seated directly behind the driver’s wheel of the Dodge Caravan, still belted into the driver’s seat, with his leg fused between the driver’s door of the vehicle and the frame of the vehicle on the hinge side of it. There was no one else in the vehicle, and Constable Reintjes testified that he accordingly was “one hundred percent certain that the occupant of that vehicle, Mr Ranger, was the driver of the vehicle at the time of the collision”.
[50] Moreover, the agreed statement of facts obviously includes admissions that, at 6pm on February 12, 2011, Mr Ranger was the driver of a black Dodge Caravan, and driving east on Dundas Street near Shaw Road.
[51] Having regard to all these considerations, (as well as an indication from defence counsel during the course of trial that identity was not an issue), I have no hesitation in finding it proven, beyond a reasonable doubt, that Mr Ranger was operating the Dodge Caravan motor vehicle both at the time of the collision, and during the minutes leading up to the collision.
Intentional Operation of Motor Vehicle After Consumption of Alcohol
[52] I turn next to the question of whether Mr Ranger intended to operate a motor vehicle after he had consumed alcohol.
[53] There was no evidence whatsoever of alcohol at the scene of the accident, or that Mr Ranger consumed any alcohol after the collision.
[54] To the contrary, the testimony of various witnesses indicates that Mr Ranger was either completely incapacitated or being attended to by paramedics or others in the wake of the accident, effectively negating any opportunity for his unobserved consumption of alcohol. For example:
• Mr Branco came upon Mr Ranger within minutes of the collision, and thought he was dead;
• Mr Borland, who arrived at the accident scene with Mr Branco, said that Mr Ranger was “passed out”;
• Mr Dietrich, who also arrived at the accident scene with Mr Branco, said that Mr Ranger was breathing but unconscious;
• Mr McCarthy, who got out of his vehicle and inspected the accident scene shortly after it happened, also noted that Mr Ranger was still unconscious; and
• Constable Reintjes, who arrived at the scene of the accident at approximately 6:07pm, (just seven minutes after the agreed time of the collision), said that an ambulance already had arrived at the scene, and the attending paramedics were attending to Mr Ranger, whom they thought was “about to expire”.
[55] However, approximately 30 minutes after the collision, Mr Ranger’s condition had stabilized, and he had regained consciousness. At that time, Constable Reintjes asked Mr Ranger if he had consumed alcohol that day, (as Constable Reintjes could detect an odour of alcohol coming from Mr Ranger’s breath even though Mr Ranger was wearing an oxygen mask), and Mr Ranger indicated that he had. In particular, Constable Reintjes said to Mr Ranger, “Obviously you have been consuming alcohol today”, and Mr Ranger replied “I was, but I wasn’t driving”.
[56] In my view, the only sensible conclusion is that Mr Ranger consumed alcohol that day, and knew he had done so, before he then chose to operate his motor vehicle.
[57] I accordingly am satisfied that it has been proven, beyond a reasonable doubt, that Mr Ranger intended to operate a motor vehicle after he had consumed alcohol.
Blood Alcohol Concentration
[58] Turning next to the matter of blood alcohol concentration, the agreed statement of facts includes an admission that blood drawn from Mr Ranger at 7:03pm on February 12, 2011, (approximately one hour after the agreed time of the collision), was analysed by the Centre of Forensic Sciences and found to have a concentration of alcohol of 214 mg in 100mL of blood.
[59] That admission was supplemented at trial by unchallenged testimony from Constable Reintjes about his being present when that blood was drawn from Mr Ranger for medical purposes, and the steps then taken by Constable Reintjes to follow that blood, and ensure that the sample of blood eventually sent to the Centre of Forensic Sciences for analysis was sealed appropriately, to ensure continuity.
[60] The admission also was supplemented by the consent filing of the aforesaid “statement of qualifications” and reporting letter prepared by Ms Wallage. The latter sets forth Ms Wallage’s conclusion that Mr Ranger’s projected blood alcohol concentration at the time of the accident was 191 to 230 mg in 100 mL of blood, (well over twice the legal limit), and the basis for her conclusion.
[61] As noted above, defence counsel acknowledged during the course of closing submissions that the analysis and conclusion of Ms Wallage were “unassailable”.
[62] In the circumstances, it unquestionably has been proven beyond a reasonable doubt that Mr Ranger was operating a motor vehicle “having consumed alcohol in such a quantity that the concentration in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood”.
Impairment
[63] Turning next to the question of impairment, this was also something addressed in Ms Wallage’s report.
[64] In particular, commenting on the aforesaid projected ranges of Mr Ranger’s blood alcohol concentration at the time of the collision, Ms Wallage outlined her expert opinion with regard to impairment as follows:
The operation of a motor vehicle requires the integrity of a variety of sensory, motor and intellectual faculties including divided attention, choice reaction time, judgment of speed and distance, risk assessment, vigilance and vision. The degree of impairment produced by alcohol is dependent upon BAC [blood alcohol concentration]. Under controlled experimental conditions, impairment of divided attention tasks has been reported at BACs as low as 15mg per 100 mL [of blood]. Nevertheless, based on a critical review of the relevant scientific literature, (laboratory, closed-course driving, crash risk assessment), it is my opinion that impairment with respect to driving becomes significant at a BAC of 50 mg per 100 mL [of blood] and increases from then onward. Whether impairment is apparent depends upon the complexity of the driving task. For example, the impairing effect of alcohol is marked in driving situations that are unpredictable and that require a rapid and appropriate response. Impairment may occur in the absence of visible signs of alcohol intoxication, which may be due to tolerance.
In my scientific opinion, an individual would be impaired in their ability to operate a motor vehicle at a BAC within the projected ranges.
[65] In my view, this unchallenged opinion and conclusion as to Mr Ranger’s impairment, (also accepted by defence counsel as “unassailable”), indicates that Mr Ranger was not only impaired, but also very impaired, at the time of the collision.
[66] That follows, I think, from Mr Ranger having, at the time of the collision, a projected blood alcohol concentration that was 3.8 to 4.6 times the blood alcohol concentration of 50mg per 100 mL at which Ms Wallage says impairment with respect to driving becomes significant.
[67] Such a conclusion also finds support in other observations, in the immediate wake of the accident, suggesting that Mr Ranger was extremely intoxicated at the time.
[68] For example, Constable Reintjes noted that, despite it being a cold February day, in the “dead of winter”, Mr Ranger was wearing shorts.
[69] Mr Ranger’s left arm also was severely broken between the elbow and wrist, giving him what Constable Reintjes described as an “extra wrist” in that arm, which Mr Ranger was moving back and forth, such that it was flopping around wildly, apparently without Mr Ranger feeling any inhibiting pain. (It was Constable Reintjes who advised Mr Ranger that he probably should not be doing that.)
[70] Mr Ranger also made a number of very odd comments to Constable Reintjes, such as repeating the number 48 over and over again, and saying that he was from Sudbury, but now London, and going home.
[71] In any event, the unchallenged opinion and conclusion of Ms Wallage as to Mr Ranger’s impairment at the time of the collision, which I accept, is sufficient in and of itself, in my opinion, to prove beyond a reasonable doubt that Mr Ranger was operating a motor vehicle while his ability to do so was impaired by alcohol.
[72] While on the subject of alcohol consumption and impairment, I also note, for later purposes, that there was no evidence whatsoever to suggest that either of the other two drivers involved in the accident had consumed any alcohol.
[73] To the contrary, Constable Reintjes spoke to Mr Medeiros very closely at the scene of the accident, and did not detect an odour of alcohol on his breath. Constable Reintjes asked Mr Medeiros if he had been drinking, and Mr Medeiros indicated “no”. When asked under oath at trial whether he had consumed any alcohol or any type of medication or drug on the day of the accident, Mr Medeiros said he had consumed “nothing” of an alcoholic nature, and that he never uses drugs.
[74] Similarly, Constable Reintjes spoke with Mr McCarthy shortly after arriving at the scene of the accident, got very close to him immediately, and determined that there was no alcohol on his breath either. Constable Reintjes asked Mr McCarthy if he had been drinking, and Mr McCarthy said “no”. When asked under oath at trial whether he had consumed any alcohol, other type of intoxicants or medication prior to the accident, Mr McCarthy again repeatedly said “no”.
Operation of Motor Vehicle in a Manner Dangerous to the Public
[75] I turn next to the question of whether Mr Ranger operated his motor vehicle in a manner dangerous to the public.
GENERAL PRINCIPLES
[76] While I received no law from counsel as to the general principles applicable to such a determination, I believe they include the following:
• As emphasized repeatedly by the Supreme Court of Canada, in cases such as R. v. Hundal, 1993 CanLII 120 (SCC), [1993] 1 S.C.R. 867, R. v. Beatty, supra, and R. v. Roy, supra, dangerous driving requires proof beyond a reasonable doubt of both an actus reus and a mens rea. In particular:
o In relation to the actus reus, the trier of fact must be satisfied beyond a reasonable doubt that, viewed objectively, the accused was, in the words of s.249(1)(a), driving in a manner that was “dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that, at the time, is or might reasonably be expected to be at that place”.
o The trier of fact also must be satisfied beyond a reasonable doubt that the accused’s objectively dangerous conduct was accompanied by the required mens rea. In making the objective assessment, the trier of fact should be satisfied on the basis of all the evidence, including evidence about the accused’s actual state of mind, if any, that the conduct amounted to a marked departure from the standard of care that a reasonable person would observe in the accused’s circumstances.
o Driving which, objectively viewed, is simply dangerous, will not on its own support the inference that the accused departed markedly from the standard of care of a reasonable person in the circumstances. In other words, proof of the actus reus of the offence, without more, does not support a reasonable inference that the required fault element was present. Only driving that constitutes a marked departure from the norm may reasonably support that inference.
• In considering whether the actus reus has been established, the question is whether the driving, viewed objectively, was dangerous to the public in all the circumstances. The focus of that inquiry must be on the risks created by the accused’s manner of driving and not the consequences, such as an accident in which he or she was involved. Again, the consequence may make the offence a more serious one, pursuant to s.249(3) or s.249(4), but it has no bearing on the question whether dangerous operation of a motor vehicle has been made out or not. The court therefore must not leap to its conclusion about the manner of driving based on the consequence. There must instead be a meaningful inquiry into the manner of driving, and whether it created a risk of damage or injury. The consequence may assist in assessing the risk involved, but it does not answer the question whether or not the vehicle was operated in a dangerous manner. See R. v. Beatty, supra, at paragraphs 45-46, and R. v. Roy, supra, at paragraphs 33-35.
• In determining the question of mens rea, the court should consider the totality of the evidence, including evidence, if any, about the accused’s state of mind. However, the mens rea requirement for the offence of dangerous driving will be satisfied by application of a modified objective test. In particular:
o It is not necessary for the Crown to prove that the accused had a positive state of mind, such as intent, recklessness or wilful blindness. That does not mean that the actual state of mind of the accused is irrelevant, as proof of a driver’s subjective mens rea of intentionally creating a danger for other users of a highway within the meaning of s.249 of the Criminal Code will constitute a “marked departure” from the standard expected of a reasonably prudent driver, thereby easily meeting the requirement of mens rea. However, while proof of subjective mens rea will clearly suffice, it is not essential. In the case of negligence-based offences such as dangerous driving, doing the prescribed act with the absence of the appropriate mental state of care may instead suffice to constitute the requisite fault, reflected in the mens rea requirement.
o The presence of objective mens rea therefore is determined by assessing the dangerous conduct as against the standard expected of a reasonably prudent driver. If the dangerous conduct constitutes a “marked departure” from that norm, the offence will be made out. What constitutes a “marked departure” from the standard expected of a reasonably prudent driver is a matter of degree. The lack of care must be serious enough to merit punishment.
o It is helpful to approach the mens rea aspect of dangerous driving by asking two questions:
▪ First, in light of all the relevant evidence, would a reasonable person have foreseen the risk and taken steps to avoid it if possible; and
▪ Second, if so, was the accused’s failure to foresee the risk and take steps to avoid it, if possible, a “marked departure” from the standard of care expected of a reasonable person in the accused’s circumstances.
o Application of the modified objective standard means that, while the reasonable person is placed in the accused’s circumstances, evidence of the accused’s personal attributes, (such as age, experience and education), is irrelevant unless it goes to the accused’s incapacity to appreciate or avoid the risk.
o Generally, existence of the required objective mens rea may be inferred from the fact that the accused drove in a manner that constituted a marked departure from the norm. However, even where the manner of driving is a marked departure from normal driving, the trier of fact must examine all of the circumstances to determine whether it is appropriate to draw the inference of fault from the manner of driving.
o In particular, if the trier of fact is convinced beyond a reasonable doubt that the objectively dangerous conduct constitutes a marked departure from the norm, the trier of fact must consider evidence about the actual state of mind of the accused, if any, to determine whether it raises a reasonable doubt about whether a reasonable person in the accused’s position would have been aware of the risk created by the conduct. If there is no such evidence, the court may convict the accused.
See R. v. Beatty, supra, at paragraphs 47-49, and R. v. Roy, supra, at paragraphs 36-42.
• Failure to confine one’s vehicle to one’s own lane of traffic is dangerous to other users of a highway, and may suffice to constitute the actus reus of dangerous driving, (although the question of mens rea of dangerous driving must then still be examined). See R. v. Beatty, supra, at paragraph 51.
• Excessive speed alone may be sufficient to constitute dangerous driving. See R. v. Richards, 2003 CanLII 48437 (ON CA), [2003] O.J. No. 1042 (C.A.).
• Alternatively, other contributing factors, including tiredness and alcohol, may take the accused’s driving to a level that constitutes dangerous driving even in the absence of sufficient evidence of high speed. See R. v. Mason, [1990] B.C.J. No. 2052 (C.A.), leave to appeal dismissed, [1990] S.C.C.A. No. 373.
[77] With the above general principles in mind, I turn to the circumstances of this particular case, starting first with an assessment of whether or not Mr Ranger committed the actus reus of dangerous driving.
ACTUS REUS
[78] Again, that requires me to determine, as the trier of fact, whether I am satisfied beyond a reasonable doubt that, viewed objectively, Mr Ranger was, in the words of s.249(1)(a), driving in a manner that was “dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that, at the time, is or might reasonably be expected to be at that place”.
Road Characteristics and Configuration
[79] In that regard, I turn first to the evidence I received concerning the relevant highway along which Mr Ranger was driving.
[80] That evidence included detailed testimony from Constables Reintjes and Walker, but was supplemented by additional incidental descriptions of the highway provided by the remaining witnesses, and by numerous photographs and diagrams that were entered as exhibits.
[81] Relevant information concerning the direction and basic lane configuration of the highway in and around the scene of the accident, includes the following:
• Highway 2, (also known as Dundas Street where it runs through various municipalities), has a generally straight east-west alignment.
• To the west, in the areas of the highway nearer to the City of London, the highway generally has four lanes; i.e., with two intended for eastbound traffic and two intended for westbound traffic.
• To the east, in the more rural areas of the highway beyond the City of London, and then right out into Oxford County, (centred on the city of Woodstock), the highway generally has only two lanes; i.e., with one lane intended for eastbound traffic and the other lane for westbound traffic.
• Along Highway 2, and at the locations where Highway 2 meets roads aligned in a north-south direction, there are a variety of different traffic controls. For example, heading east from London towards the accident scene, one progressively encounters the following:
o Immediately west of a “T-intersection” with Nissouri Road, (which heads north from Highway 2, towards Thorndale), the four lane highway from London turns into five lanes, with:
▪ two lanes towards the south side of the highway dedicated to eastbound traffic, (with those two eastbound lanes being separated from each other by a broken white caution line);
▪ a turn lane in the centre of the highway for previously eastbound traffic turning left or north onto Nissouri Road, (with that turn lane separated from the two eastbound lanes of traffic by a solid white line); and
▪ two lanes towards the north side of the highway dedicated to westbound traffic, (with those two westbound lanes separated from the above three lanes by two parallel yellow “boulevard” lanes, and separated from each other by a broken white caution line.
o East of the “T-intersection” with Nissouri Road, the highway resumes a basic four lane configuration, with two eastbound lanes and two westbound lanes, with the eastbound and westbound lanes separated from each other by two parallel yellow “boulevard” lines in the centre of the highway, and with the lanes travelling in each direction once again separated from each other by a broken white caution line.
o Highway 2 then continues in that four lane configuration to its next “T-intersection” with Shaw Road, (which heads south from Highway 2). That intersection is controlled by a traffic light.
o Immediately to the east of its “T-intersection” with Shaw Road, Highway 2 continues in its four lane configuration, but only for a relatively short distance. In particular, by the time one reaches the scene of the accident, approximately 350 meters east of the intersection with Shaw Road, the highway has transformed into a two lane highway, with one eastbound lane and one westbound lane, separated by a broken yellow caution line.
o At the point where the accident occurred, the eastbound lane of Highway 2 opens to the width of two “normal” lanes, to accommodate the possibility of some eastbound traffic slowing to turn north onto Fairview Road, (the next “T-intersection” of Highway 2, immediately to the east of the accident location), while traffic continuing eastbound is able to pass to the right. However, that extra wide eastbound lane, in the area of the collision, is not marked as two lanes. The westbound lane, at that point, has a standard highway lane width. However, along the north side of the westbound lane, in that area, is an extra wide driveway entrance that extends approximately 6-7 car lengths from its eastern edge to its western edge. Running along each side of the travelled portion of the highway, where the accident occurred, are solid white lines, also described as “fog lines”. Similar lines are shown in photographs depicting other sections of the highway, (e.g., as far as one can see on both sides of the highway east and west of its intersection with Nissouri Road), which suggests to me that the fog lines are standard safety markings running along the relevant length of Highway 2.)
o To the east of the scene of the accident, Highway 2 then continues for many miles after the T-intersection with Fairview Road in the same two lane configuration; i.e., with just one lane for eastbound traffic and one lane for westbound traffic, separated by a broken yellow caution line.
[82] Although it was not highlighted in the testimony before me, the obvious conclusion is that the accident in this case occurred just east of the point where Highway 2 transforms and merges from a four lane highway into a two lane highway.
[83] The posted speed limit along the entire section of Highway 2, described above, is 80 km per hour.
[84] In the location where the accident occurred, the roadway is relatively straight and flat.
[85] Constable Reintjes testified that, in the area of the accident, there are numerous small businesses, clubs and residences, and to some extent, this was echoed in the testimony of the civilian witnesses, who mentioned things like a church, flea market and used car dealership along the stretch of Highway 2 near the scene of the accident.
[86] Constable Walker testified that, based on his observations from working in the area over time, Highway 2 is a major traffic artery that crosses Middlesex county and into the adjoining counties from Middlesex. The road is heavily travelled, mostly during the daylight, but there is a large amount of traffic on that road in the evening as well. The traffic flow diminishes considerably at night.
[87] As for traffic volumes along Highway 2 on the day in question, shortly before the accident at approximately 6:00pm:
• Mr Medeiros recalled cars “passing by” him, and says there were “many behind” him travelling in the same direction during his drive that day.
• Ms Pimental noted that she had seen other vehicles traveling “in their own lanes” before the collision. She did not notice any cars right behind the Medeiros vehicle “right before the collision”.
• Mr McCarthy recalled the traffic along Highway 2 that day being “not too busy”, with “just regular traffic”, and a “few cars but not a whole lot”. He could recall cars going past him in the opposite direction, but no one overtaking him in the same direction.
• Mrs McCarthy said there “wasn’t heavy traffic”, and thought it was “fairly light”, but also confirmed that there were vehicles going past them “the other way, in the other lane”.
• Other vehicles came upon the accident almost immediately after the Ranger, Medeiros and McCarthy vehicles collided. This included those stopping to render first aid and other assistance, (such as the occupants of the Branco and Scott vehicles), and other bystanders. In that regard, although Mr Dietrich felt that eastbound traffic “wasn’t very heavy”, and both Mr Branco and Mr Borland indicated that there were no other eastbound vehicles travelling in front of them along Highway 2 between the Nissouri Road and Shaw Road intersections or beyond, apart from an overtaking van described in more detail below, Mr Branco noted that westbound vehicles other than those involved in the collision already were pulling over to the side of the road shortly after the accident, while Mr Branco was calling 911.
• The traffic along Highway 2 was sufficiently busy, in the aftermath of the accident, that Mr Scott and his girlfriend immediately decided to assume responsibility for stopping, directing and detouring traffic approaching the scene from each direction, until the arrival of police and emergency services. Indeed, Constable Reintjes noted that Mr Scott obviously thought it advisable to don a traffic vest and employ a flashlight for that purpose.
Weather, Road, Lighting and Visibility Conditions
[88] As for the prevailing weather and road conditions, witnesses who were travelling along the relevant area of Highway 2 at the time of Mr Ranger’s driving, and those who were called to the scene and made observations immediately after Mr Ranger’s driving came to an end, generally agreed that it was a clear afternoon, with no precipitation and nothing affecting the travelled surface of the roadway. In particular:
• Mr Medeiros said the street was “fine”, and that there was “nothing” on the road, which was “dry”. He says the road conditions in the area of the collision “were okay”.
• Mr McCarthy said there was “a little bit of snow that day”, but no snow on the road surface of Highway 2 by the time he was driving on it. He thought it was “just … a little damp”. Other than that, he emphasized that the road conditions were clear.
• Mrs McCarthy said there were “just a few wet areas” on Highway 2 “because it had snowed earlier in the day”, but the road otherwise was “dry” and “clear”.
• Mr Scott described the road conditions leading up to the accident as “dry, dry roads”, and confirmed that there were no other “impediments or anything” on the road.
• Mr Dietrich said the “road was clear”, with “no snow on it”, and that there was “no weather that would have affected the road surface”. He did not think there was any dampness.
• Constable Reintjes said that, while some north-south roads around Highway 2 were icy and slippery that day, the relevant east-west section of Highway 2 was “clear and dry”, and that he would describe it as “ideal”.
• Constable Walker noted that the skies were clear, and that there was no precipitation. He therefore was puzzled by the presence of damp areas at the scene of the accident, and speculated that this had been caused by people walking through fluids at the accident scene, actions of the fire department, or vehicle exhaust.
• Constable Reintjes and Constable Walker did note the presence of intermittent, small and hard-packed snowbanks in the ditch areas along the eastbound and westbound sides of Highway 2, and this was confirmed by the photograph exhibits, (although other witnesses such as Mr Medeiros and Mr Dietrich could not remember them). However, there was no evidence or suggestion that those snowbanks or anything else encroached on the regularly travelled portions of the highway.
[89] There also appeared to be no dispute that it was still daylight in the period immediately before the accident, when Mr Ranger was driving, and that visibility was good. For example:
• Mr Medeiros said it was “still day-time”, and that it “was light” at the relevant time of day, just before the collision.
• Ms Pimentel confirmed that she and Mr Medeiros left home for their drive to London in the afternoon, and that it was still light out at the time.
• Mr McCarthy said it had been cloudy that day, and that, at the time of the collision, it was not dark but it was around dusk and starting to get dark. However, in his words, one still was “able to see good”.
• Mrs McCarthy testified that she and her husband started their drive at approximately 5:00pm, and turned west on to Highway 2 at approximately 5:30pm, when it was still daylight out.
• Mr Scott testified that it was still “daytime” or “daylight” when he came upon the accident, and that looking forward down the road as he was driving, he was able to see “quite a ways” ahead of him.
• Mr Borland said it was “still light out” as he and his companions were travelling along Dundas Street, and “still bright out” when they came upon the scene of the accident.
• Mr Dietrich said it was “dusk”, but it was “not quite dark out yet”, and there was “still some sun out”. According to him, the weather was “clear”.
• Constable Reintjes said he was first alerted to the accident by radio “right at 6:00pm”. It took him seven minutes to reach the scene. Although the sun went down very quickly that day, owing to the time of year, when Constable Reintjes arrived at the accident scene it was “dusk” but “still daylight”, and everything was still “very, very clear”. For example, he noted that, when he reached Shaw Road’s intersection with Highway 2, he could clearly see the accident scene approximately 350 meters along the highway to the east.
[90] While testimony occasionally touched on the question of whether various car lights were on or seen at the time of the accident, I do not attach much if any significance to such evidence. As Mr Medeiros and Mr McCarthy noted, in relation to their own respective vehicles, some exterior car lights now are activated automatically during vehicle operation, regardless of exterior lighting conditions.
Manner of Accused Driving - General
[91] I turn next to evidence of the manner in which Mr Ranger may have been driving before the collision, on the type of road I have described, under the sort of conditions I have described.
[92] In that regard, all evidence concerning Mr Ranger’s manner of driving is relevant, and obviously should be taken into account in making the overall assessments required in relation to dangerous driving, which I have outlined above.
[93] However, if only to facilitate a review of the evidence led by the Crown in that regard, it seemed to me that it fell into two notional categories:
i. Evidence from witnesses who are said to have observed the manner of Mr Ranger’s driving shortly before the accident, but who did not then follow his movements up until the moment of the accident; and
ii. Evidence from other witnesses, and physical evidence, that are said to indicate directly or indirectly the manner in which Mr Ranger was driving immediately before the accident.
[94] The first type of evidence obviously may give rise to suggested inferences as to how Mr Ranger then continued to drive in the remaining moments leading up to the accident, while the second type of evidence arguably has a more direct bearing on such determinations.
Manner of Accused Driving Shortly Before the Accident
[95] I turn first to evidence of the manner in which Mr Ranger is said to have been driving shortly before the accident.
[96] In particular, I was presented with testimony from numerous other individuals who were travelling eastbound on Highway 2, and who were said to have seen Mr Ranger driving near or past them along the stretch of highway west of the accident scene.
[97] This included the testimony of Dennis Scott, who seemed a somewhat reluctant but honest witness. Details of his evidence include the following:
• On the day in question, Mr Scott and his girlfriend were travelling east on Highway 2, in Mr Scott’s van, between 5:00pm and 6:00pm. Mr Scott was driving.
• Mr Scott says that, as he was traveling in what he thought was an area of Highway 2 between its T-intersection with Nissouri Road and its T-intersection with Shaw Road, (which Mr Scott attempted to identify by reference to landmarks, including a church at the northeast corner of the Nissouri Road intersection, and the Trails end flea market located near the traffic lights at the Shaw Road intersection), a passing van caught his attention.
• Mr Scott candidly acknowledged at trial that he was not “one hundred percent sure” as to what that other van looked like, as he was more focused on paying attention to the road. He thought the other van was dark blue or grey, but did not know whether that was accurate. Nor did he know the make or model of the other van.
• At the time he first noticed the van in question, Highway 2 was still divided into four lanes, with two intended for traffic in each direction. The Scott vehicle was travelling in the left eastbound lane, and Mr Scott said the other van passed the Scott vehicle on the right, in the eastbound lane closest to the south side or “curb” of the highway.
• After that other van passed the Scott vehicle, Mr Scott then observed it “just kind of weaving in and out”, “in between other different vehicles”. (Mr Scott used the descriptive phrases “weaving in and out”, and “weaving in-between” repeatedly in describing the movements of the other van.) Mr Scott testified that he saw the other van move that way in relation to at least two cars, but clarified in cross-examination that there was just one car separating him from the other van as he saw it “weaving”.
• Mr Scott added that the other van “didn’t look like he was going crazy”, and that the driver of that other van “was using his blinkers”, but that the van in question was still “weaving in and out” of traffic; i.e., passing vehicles on both the right and the left.
• Mr Scott said he was driving at approximately 80-85 km per hour when he first saw the other van, and then saw it weaving in and out between other eastbound vehicles. He estimated that the other van was going approximately 5-10 km faster than he was.
• Mr Scott did not follow the further movements of the other van during the remaining time it took for the Scott vehicle to reach the intersection of Highway 2 and Shaw Road, where Mr Scott stopped for a red light. However, Mr Scott was able to say that, while observing the movements of that other van, and over the course of the remaining distance between that location and the traffic light at the Shaw Road intersection, he saw no other vans pull out from any driveway or side street in front of him, and as far as he was aware, there were no other vans travelling around him in the eastbound lanes of Highway 2. In cross-examination, Mr Scott was pressed to acknowledge a possibility that one or more of the other vehicles he had seen may in fact have been another van. However, Mr Scott did not agree with that suggestion. Based on his observations, he remembered there being only cars in the area, apart from the other van that had passed him. Mr Scott also confirmed that there were in fact no roads turning off or onto Highway 2 between the point where he observed the other van, and the turn right onto Shaw Road.
• The Scott vehicle was one of the first two eastbound vehicles to stop at that red light, and as it did so, Mr Scott said he did not see the other van there, or any other vehicles even similar to that other van. In his words: “When I got to the intersection at the red light, I was there and he was already gone.” Mr Scott confirmed that he did not see the other van go through that intersection.
• Mr Scott says that, by the time he pulled to a stop to wait for that red light at the Shaw Road intersection, he had moved into the right eastbound lane. Again, his was one of the first two vehicles to stop at that red light, and he says the other was a car stopped to his left. At trial, Mr Scott initially said that he did not know if that was the car that had been to his front, separating him from the other van once it passed by. He then said he thought the car stopped to his left may have been behind him, but then seemed confused by his inability to then say where the car previously separating him from the other van had gone.
• When the light turned green, the Scott vehicle and the car to its left both then advanced, with the car to his left pulling ahead of the Scott vehicle. (According to Mr Scott, no other eastbound vehicles advanced ahead of him at that point.) Mr Scott says both vehicles then noticed the accident a short distance ahead, and stopped to help.
• Although Mr Scott said he did not recognize the other van that had passed him among the three vehicles involved in the collision, he also indicated that he stayed to the west of the accident scene to direct traffic, while his girlfriend went past the accident scene to direct traffic approaching from the east. (This accords with the testimony of Constable Reintjes, who said he encountered Mr Scott directing traffic at the Shaw Road intersection, 350 meters west of the accident scene.) In other words, Mr Scott did not really have much if any opportunity to look carefully at the three vehicles involved in the collision.
[98] Manny Branco was also said to have observed Mr Ranger’s driving shortly before the accident. I was impressed by the spontaneity and candor which characterized his evidence, and his testimony included the following:
• On the day in question, Mr Branco was driving his vehicle east on Highway 2, between 5:30pm and 6:00pm. He was heading home to Woodstock from London, with two friends as passengers. In particular, Mr Branco says Phil Borland was sitting in the front passenger seat, and that Aaron Dietrich was sitting in the rear, behind Mr Branco.
• Mr Branco says a passing van caught his attention “just after the flea market and the first left before Shaw Road heading east towards Woodstock”. However, Mr Branco then went on to clearly indicate he first saw the passing van at a point where eastbound Highway 2 turns into five lanes, with two dedicated westbound lanes, two dedicated eastbound lanes, and another lane in the centre for eastbound traffic turning left. In other words, it was clear to me that Mr Branco was saying that he first noticed the passing van immediately to the west of the intersection of Highway 2 and Nissouri Road.
• When asked what it was about the passing van that caught his attention, Mr Branco said it was because, in his words: “We seen the van fly past us, driving pretty fast”. However, he then went on to say that van also passed to the left of the Branco vehicle by proceeding straight through the left turn lane, without turning left. (Mr Branco said that, when the van passed, he was driving his own vehicle in the left of the two “continuous driving lanes” for eastbound traffic, with an empty lane to his right.) In cross-examination, Mr Branco was taken to a previous written statement, containing indications that Mr Dietrich “said that he saw a van pass us”, and that “Aaron saw the van pass us in the turn lane”, but Mr Branco was adamant that he did not intend to indicate that he had not seen the van passing as well. He was quite certain that he had.
• At trial, Mr Branco thought the passing van may have been “a green Ford mini-van”, but candidly admitted that he could no longer remember its colour. He also acknowledged that he is not really a “car guy”, and does not follow vehicle lines.
• Mr Branco acknowledged that, when the van passed, Mr Branco himself was travelling above the posted 80 km per hour speed limit, at approximately 90-95 km per hour. When pressed for a numerical estimate of the passing van’s speed, Mr Branco said he would “guess a hundred”, but emphasized that he really could not “say for sure”. He just knew it was going faster than he was, and he recalled he and his friends talking about that. However, he could not recall specifics of the conversation, apart from “not just Aaron” saying things to the effect of “Holy, look at that guy go!”.
• Mr Branco says that, after the van passed him by going straight through the left turn lane, it then “swerved right over back into the left eastbound lane” in front of him, where there was no other traffic. Mr Branco did not see the van then manoevre around any other vehicle.
• Indeed, Mr Branco said that, apart from the van that passed him, there was no other eastbound traffic ahead of the Branco vehicle between the Nissouri Road intersection and the Shaw Road intersection, and that he accordingly was able to see the van pass through that next intersection as well, and proceed on to the point where Highway 2 merges from four lanes in each direction into two lanes in each direction – at which point Mr Branco says the van was in the one eastbound lane there. Mr Branco nevertheless was obliged to stop for a red light at the Shaw Road intersection before proceeding.
• Mr Branco says that, when he stopped for the red light at the Shaw Road intersection, there were no other vehicles there that he can remember. Apart from the van that had passed him, there was no other eastbound traffic going down the road ahead of him. Moreover, while he was waiting at the red light, no other traffic used the light to proceed ahead of him on Highway 2, (i.e., by turning right onto Highway 2 from Shaw Road). Mr Branco says that, after stopping for the red light, he did not “lose sight” of the van that had passed them, but simply stopped paying attention to it.
• Mr Branco testified that he did not see any type of collision.
• However, he says that, when the light changed, he proceeded east and, “as soon as” he and his companions passed the Shaw Road intersection, they could see the van that passed them, (along with other vehicles involved in the collision), and that the van that had passed them was “not on the road”, but “on the shoulder” of “his lane”.
• Mr Branco was quite sure that the van on the shoulder of the eastbound lane was the same one that had passed the Branco vehicle at the Nissouri Road intersection, as he knew there were no other eastbound vehicles immediately ahead of him between the Shaw Road intersection and the scene of the accident, and the van was the same colour as the one that had passed them. (Although Mr Branco candidly could not recall the colour of the van at trial, he emphasized that he “would have remembered” it at the time.)
• Mr Branco then went on to describe how he and his companions stopped and exited their vehicle to render assistance. This included his going right up to what he described as the “eastbound” vehicle on the shoulder of the eastbound lanes, which contained a driver whom Mr Branco thought was dead. Mr Branco once again confirmed that, although he did not recognize the vehicle’s driver at the time, he did recognize the vehicle as the one that had passed them at the Nissouri Road intersection.
[99] I also heard testimony from Phil Borland, who also impressed me by quickly acknowledging things he did not know, and identifying things he was not sure about, while remaining confident of the details he could recall. His evidence included the following:
• He confirmed that, on the afternoon of the day in question, he was travelling along Dundas Street as a front seat passenger in Mr Branco’s vehicle. He also confirmed that Mr Branco was driving, with Mr Dietrich sitting in the rear of the vehicle.
• When asked if something came to his attention during that drive, Mr Borland testified that a “blue van”, which he later described more specifically as a “blue Dodge Caravan”, and a “dark blue Dodge Caravan”, then “sped past” the Branco vehicle on its left-hand side. Mr Borland says he had not seen the van before then. He also said that, as it passed, he saw that the van was being driven by an “older” and “bigger guy”, with “balding white hair”, whom he had never seen before, who appeared to have no one with him. Mr Borland thought there were no other vehicles around them when the van passed by, and was sure that the van then was the only vehicle ahead of the Branco vehicle as it continued along Dundas Street. In that regard, he also was sure that no other vehicles passed them before they arrived at the scene of the collision, and did not think any other vehicles came on to Dundas Street in front of them between the time of the van passing and the time of their arrival at the accident location.
• Despite those clear recollections, Mr Borland candidly acknowledged that he could not recall precisely where the van passed them on Dundas Street, and was unsure of the configuration of the street or number of lanes at that point. He also readily indicated that he had “no idea” as to the particular eastbound lane in which the Branco vehicle was travelling at the time, and similarly could not say which lane the passing van had used when it overtook them. Having said that, he was able to say that the Branco vehicle remained in its same lane the entire time while the van was passing, and that the passing van “went around” the Branco vehicle on the left before it then “came back in” in front of them.
• Mr Borland admitted that he really had “no idea” how fast the Branco vehicle was going when it was overtaken by the van, and similarly “no idea” of the van’s speed at that point. His attention was drawn to the van and its driver simply because, in his words, “he zipped by us pretty fast”. (Later in his testimony, he described seeing the van “zoom by” them.) When pressed for a numerical estimate of the difference in speed between the two vehicles, Mr Borland said the van was “probably” going 5-10 km faster. However, he also emphasized that it “just took off in the distance”. He added that it “just passed us on the left-hand side, and then it was gone”.
• Mr Borland recalled that he and his companions “commented” on the van when it passed, but he did not recall the details of that conversation.
• Mr Borland recalled then losing sight of the van after it passed, as he “really didn’t bother to pay attention to it afterwards”, and says that he did not see it again until they pulled up on the accident scene “a couple of minutes later”. He then saw the same “blue van” to the right, on the shoulder of the road, “near the ditch”. He was sure it was the same van that had passed them, as it was the “same colour and everything … a dark blue dodge Caravan”.
• Mr Borland confirmed that he too did not see the collision itself.
• Mr Borland says that, when the Branco vehicle pulled up to the scene of the accident, there were no other vehicles ahead of them on the road but those involved in the collision. Mr Borland says he and Mr Dietrich then exited the vehicle and ran to see if they could help those involved in the accident, while Mr Branco stayed behind temporarily to call 911. In particular, Mr Borland says he approached the “dark minivan” on the right shoulder of the road and recognized its unconscious driver as being, in his words, “the same guy that passed us”. Having said that, he acknowledged that he “really didn’t take a good glimpse” of that driver at the accident scene, and could not say at trial how satisfied he was that it was the same individual he saw when the van passed by them.
[100] Finally, in relation to suggested observations of Mr Ranger’s driving shortly before the accident, I received testimony from Aaron Dietrich, who was a very calm, clear and impressive witness. His answers were confident but measured, and he struck me as a person inclined to detail but not exaggeration. He was careful to confirm what he did and did not see. He was also quite willing to question the expressed views of his two friends when informed about certain aspects of their testimony, which in my view lent additional weight to his credibility. Details of Mr Dietrich’s testimony included the following:
• He confirmed that, on the day in question, he was a backseat passenger in the vehicle being driven by Mr Branco, as he, Mr Branco, and the front seat passenger Mr Borland, were travelling home to Woodstock from London, heading east along Highway 2. Although Mr Branco recalled Mr Dietrich sitting directly behind him, Mr Dietrich says he was sitting in the right rear passenger seat.
• Mr Dietrich testified that he specifically recalled a van overtaking them as they were “closing in on the Thorndale turning lane”, a description which, along with his further description of the Highway 2 lane configurations at that point, made it clear that he was talking about the highway’s intersection with Nissouri Road.
• Mr Dietrich says that, as the Branco vehicle was approaching that intersection, it was “brought up” by someone in their vehicle, (either Mr Branco or Mr Borland, but to Mr Deitrich’s “best recollection” Mr Branco), that a van was “coming up” on their left hand side, “going at a fair rate of speed”. Mr Dietrich was sure that he was not the first person in their vehicle to notice the mini-van coming up on their left-hand side.
• Mr Dietrich said that, when the van passed them, he noticed that it was going “relatively fast”. In that regard, he readily acknowledged that he was not paying particular attention to Mr Branco’s speed when the van went by them. However, he thought they were going approximately 90 km per hour, and that the van “would have been going much faster” than that. When asked for a numerical estimate of the difference in the two vehicles’ speed, Mr Dietrich said the van was going “at least 40-50 km faster” than the Branco vehicle.
• Mr Dietrich was also quite sure that, when the van passed them, their vehicle was travelling in the far right eastbound lane, there was a full and absolutely clear eastbound lane between their vehicle and the left turning lane, and the van that passed them did so while it was travelling fully in the left turning lane. In addition to the van’s speed, that was something that particular caught Mr Dietrich’s attention. In particular, he thought it unusual that someone would go past them using the left turning lane, instead of just overtaking in the empty passing lane immediately to their left.
• Mr Dietrich made it clear that he looked at the other vehicle only briefly as it passed by, but saw that it was a “dark coloured mini-van”. He was not sure, but believed it was black in colour. Later in his testimony, he also recalled that it had at least some tinted windows. He saw its tail lights, but did not its headlights. He also made it clear that he personally did not have an opportunity to see people inside the van as it went by, and felt that it was moving too fast to obtain a good view of its driver. In that regard, he indicated without hesitation that it would be surprising to him if Mr Borland had a sufficient opportunity at that point, from his position in the right front passenger seat, to describe the van’s driver. However, he also believed that Mr Borland had in fact turned his head to look over his shoulder at the van as it was coming up behind them.
• According to Mr Dietrich, after the van passed by, it then “came back over into the left hand lane from the turning lane, [and] continued speeding past” them. He thought that caused Mr Branco to slow down a little bit. As for the van now in front of them, Mr Dietrich “saw it go”, “gave it about five to six second as [he] watched it, and then stopped watching it”. He said he did not really think about watching it again after that, and did not maintain eye contact with the vehicle.
• Mr Dietrich says the Branco vehicle then continued on to the traffic lights at the Shaw Road intersection, where they stopped for a red light. He says that, after the van passed them, no other eastbound vehicles passed them before or after the Branco vehicle got to that intersection, and that no other eastbound vehicles pulled on to the road ahead of them. Moreover, Mr Dietrich says that, when they stopped at the Shaw Road intersection for the red light, the van that passed them was not there - although he does recall another vehicle coming up to the red light from behind them. No traffic was coming from the opposite direction.
• Mr Dietrich testified that, when the light at the Shaw Road intersection turned green, they were still going through the intersection when Mr Branco noticed and indicated that there was an accident ahead, which prompted Mr Dietrich to wonder out loud, before he could even see past Mr Branco and Mr Borland to look at the accident, whether the van that passed them was involved. He said that was a reflection of his opinion, at the time, that the van was driving “recklessly” having regard to its speed and its use of the left turn lane to pass them.
• When Mr Branco pulled to the side of the road beyond the Shaw Road intersection, Mr Dietrich says he saw the vehicles involved in the collision, including the black van that had passed them. He saw it on the right shoulder of the road, and says he recognized it because of its colour, make, style of mini-van, and its tinted windows. Again, it was also the only eastbound vehicle that had passed or moved in front of them before they came upon the accident scene shortly after it happened.
• It should be noted, for later purposes, that Mr Dietrich initially thought there were four and not three vehicles involved in the accident, owing to the presence of a black car parked off to the north side of the road, at a used car dealership located close to the site of the collision. He said that was in addition to the black van that had passed them, a brown van in the middle of the road, and another vehicle right behind that brown van.
[101] Pausing to consider and assess the testimony of these four witnesses, I have a number of observations and comments about the manner in which Mr Ranger was driving shortly before the accident.
[102] First I am satisfied that the van observed by these four witnesses, prior to the collision, was indeed Mr Ranger’s vehicle. In that regard:
• At trial, Mr Branco, Mr Borland and Mr Dietrich had slightly different descriptions of the van, to be sure. For example, their respective memories as to the colour, make and model of the van were not the same.
• However, what I think far more important is that, when they came upon the scene of the accident, (some 2½ years before they were asked to recall the events of that day at trial), all three of these gentlemen immediately recognized the vehicle they had seen just minutes before, and all of them were quite sure at the time that it was the same vehicle that had passed them in a memorable and notable way at the Nissouri Road intersection.
• Moreover, the Branco vehicle clearly was the first eastbound vehicle to come upon the scene of the accident, (followed closely by the Scott vehicle), and in my view, there really is no evidence whatsoever to support a suggestion that there was any eastbound van other than Mr Ranger’s travelling ahead of the Branco vehicle. To the contrary, the evidence of Mr Branco, Mr Borland and Mr Dietrich is consistent in saying that there were no other eastbound vehicles ahead of them on Highway 2 apart from the van that overtook them, after it passed them. There were no roads leading or turning into Highway 2 between the point where the van passed the Branco vehicle and the scene of the accident, apart from the Shaw Road intersection, and I accept Mr Branco’s evidence that he definitely followed the movements of the overtaking van along Highway 2 until it was past that intersection, and at the point of the highway’s merger from four lanes to two lanes, without any other eastbound vehicle somehow joining it in advance of the Branco vehicle.
• As for Mr Scott, he personally did not recognize or identify the van he observed in motion before the accident as being one and the same as Mr Ranger’s vehicle at the scene of the accident.
• However, I am satisfied that the identity of the van observed by Mr Scott was established indirectly by the totality of the evidence. In particular:
o Mr Scott was sure that the van he saw was the only other van travelling around and then ahead of him in the eastbound lanes of Highway 2.
o Mr Scott said that when he last saw the van, it was ahead of him and separated from him by only one car.
o The Branco and Scott vehicles clearly were the first two to come upon the accident scene, (in that order), which makes it absolutely clear to me that the vehicle stopped beside Mr Scott at the Shaw Road intersection was the Branco vehicle.
o Mr Scott was not sure whether the vehicle stopped beside him at the red light, (the Branco vehicle), had come from behind him, whereas all three occupants of the Branco vehicle were quite sure that there had been no other vehicles ahead of them apart from the van that sped past them. Moreover, Mr Dietrich also was sure that another vehicle came up from behind the Branco vehicle as it was stopped and waiting at the red light.
o Moreover, Mr Scott said there was only one car ahead of him in the eastbound lanes, separating his van from the other van that passed him. If the Branco vehicle was the car separating Mr Scott’s vehicle from the other van he observed, when he last saw it, that would explain where that “other car” had gone when Mr Scott pulled up to the Shaw Road intersection. It was sitting right beside him at the traffic light, in the form of the Branco vehicle. However, if the “other car” separating Mr Scott from the other van was not the Branco vehicle, Mr Scott had no explanation whatsoever as to how that “other car” somehow had disappeared from the eastbound lanes ahead of him before he arrived at the Shaw Road intersection. Perhaps more importantly, there was no evidence indicating that the other car had in fact left the eastbound lanes ahead of Mr Scott.
o Having regard to the evidence as a whole, I find that Mr Scott was in fact travelling eastbound along Highway 2 behind the Branco vehicle, and that what he observed was a speeding van passing him on the right before it then passed the Branco vehicle on the left, as the Branco vehicle was passing through the Nissouri Road intersection. (Mr Scott was vague as to the precise point along Highway 2 at which he was overtaken by the other van, and to the extent he indicated that it happened between the Nissouri Road and Shaw Road intersections, I think he was mistaken. Mr Ranger in fact passed Mr Scott to the west of the Nissouri Road intersection.)
o Although Mr Scott could not identify the vehicle that passed his vehicle and then the Branco vehicle, that identification was provided by Mr Branco, Mr Borland and Mr Dietrich, in the manner I already have described.
[103] Second, the evidence confirms that, shortly before the accident, Mr Ranger was not consistently travelling in the same lane, but was in fact changing lanes a number of times.
[104] Third, the evidence confirms that, shortly before the accident, Mr Ranger was “weaving” through traffic, successively passing other eastbound vehicles not only by travelling to their left but also by passing on their right. In that regard:
• Passing on the right, (otherwise known as “undertaking”), is inherently dangerous, as it creates heightened risks for others. In particular, it deviates from the convention and reasonable expectation that, in relation to traffic moving in the same direction, slower traffic should move to the right while faster traffic overtakes on the left, after waiting for an opportunity to do that safely.
• When vehicles “undertake”, or pass on the right, they accordingly deviate from the reasonable expectations of other drivers, who understandably rely on predictability of other driver movement to make their own decisions as to what movements they may make in safety. In particular, drivers in the left of the two lanes heading in the same direction, who are not themselves overtaking other vehicles in the right lane, and who therefore might reasonably be considering a move into the slower right lane, reasonably would not expect a faster vehicle to be engaged in a passing manoevre to their right. Such a manoevre brings the undertaking vehicle directly into the area into which the vehicle on the left intends to merge. It also simultaneously moves the undertaking vehicle into the area to the right and rear of the vehicle in the left lane – which inherently is the most difficult area for drivers to see, (at least in relation to vehicles with steering wheels positioned on the left). Such situations obviously create a risk that the undertaking vehicle unintentionally will be “cut off” by the vehicle on the left trying to move to the right, and the corresponding risk of an accident.
• In my view, Mr Ranger’s multiple changing of lanes so as to “undertake” or pass on the right therefore should be regarded as dangerous, insofar as it created heightened risks to other members of the public who were present or might have been expected to be present on Highway 2.
[105] Fourth, the evidence confirms that, shortly before the accident, Mr Ranger also was either ignoring or disregarding clearly visible lane designations and control markings on the highway. In my view, that is confirmed by the manner in which he navigated his way straight through the marked left hand turn for previously eastbound traffic, located at the T-intersection of Highway 2 and Nissouri Road. In that regard:
• While Mr Branco and Mr Dietrich had different recollections as to the lane in which their vehicle was travelling, (with Mr Branco saying that he was in the left lane intended for eastbound traffic proceeding through the intersection, and Mr Dietrich saying that the Branco vehicle was in the far right eastbound lane when Mr Ranger passed them), they were both consistent and clear about the fact that Mr Ranger’s vehicle overtook theirs by travelling straight on through the designated left turn lane at that intersection.
• I reject suggestions by defence counsel, in the course of cross-examination and final submissions, that driving straight through that left turn lane should be trivialized as unimportant, with little or no risk implications, and attempts to characterize use of that left turn lane for left turns, (as opposed to its use as an additional passing lane), as something that was essentially “optional”.
• In my view, the relevant signage, road markings and highway configuration at that point made it absolutely clear that the lane in the centre of Highway 2 was intended only for previously eastbound drivers intending to turn left off the highway, and head north on Nissouri road in the direction of Thorndale. In particular:
o Signs on the side of the road, approaching that left turn, have large arrows alerting eastbound drivers to the approaching T-intersection with the Nissouri Road to Thorndale, and the possibility of a left hand turn off Highway 2 at that point.
o The left hand turn lane has a standard white turn arrow, painted on the pavement in the centre of the lane, as one approaches the T-intersection with Nissouri Road.
o The left hand turn lane also is clearly separated, by a solid white line, from the two lanes intended for eastbound traffic heading straight through the intersection – with those two lanes continuing to be separated from each other by only a broken white line. The clear implication is that eastbound vehicles remaining in the two lanes towards the south side of the highway were free to continue using either of those two lanes, but were not to cross into the left hand turn lane. Similarly, vehicles that had entered the left hand turn lane were not to cross back into the two eastbound lanes towards the south side of the road.
o Looking at the photographs of the relevant intersection, I share the view expressed by Mr Dietrich that a vehicle continuing straight through that left turn lane, without performing a merging manoevre to the right, would end up heading over the centre lines dividing the highway beyond the intersection.
• Again, legitimate driver expectations as to the probable movements of other vehicles are important to the shared use of roads in a safe manner. Predictable movements by others allow drivers to make their own decisions as to the driving movements they in turn may perform safely. For that reason, adherence to clearly visible lane designations and control markings on the highway is important because drivers expect, and reasonably are entitled to expect, that other drivers will follow and comply with such designations and markings. Deviations and non-compliance in that regard run counter to such legitimate expectations of probable vehicle movements, thereby inherently creating risks for other drivers and members of the public using the highway. For example, in this case:
o Eastbound drivers intending to proceed straight on through the T-intersection of Highway 2 and Nissouri Road without turning left, and particularly eastbound drivers in the left of the two lanes intended for such eastbound traffic, reasonably would expect a vehicle in the left turn lane to be slowing down, and to make a left turn. A vehicle in the designated left turn lane that does neither, and instead both fails to slow down and then, of necessity, makes a sudden merger to the right to regain and join with the left of the two eastbound lanes intended for traffic heading straight through the intersection, creates obvious risks for other drivers who might reasonably be expected to be in that lane, complying with the lane markings and designations, and not expecting such a merger. (Again, Mr Branco described Mr Ranger making just such a dangerous move, “swerving right back over into the left eastbound lane” immediately after traversing the intersection. Had there been another vehicle travelling immediately ahead of Mr Branco, (if Mr Branco was indeed in that lane, as opposed to the far right lane as suggested by Mr Dietrich), Mr Ranger would not have been able to complete such a manoevre, forcing him to continue forward into oncoming traffic in the westbound lanes.)
o However, driving straight through the left turn lane creates risks for those travelling in the westbound lanes as well, and particularly those travelling in the left westbound lane. Those in such vehicles also would have a reasonable expectation that a previously eastbound vehicle in the left turn lane would be slowing and preparing to turn left when a break in the flow of westbound traffic would permit making such a left turn in safety. Those travelling westbound reasonably would not expect a vehicle in the left turn lane to be coming straight through that lane at high speed, and necessarily heading in the direction of crossing over the centre line into the path of westbound traffic unless a merger with the left eastbound through lane could be performed safely. Moreover, if such a merger could not be performed safely, those travelling within the westbound lane unnecessarily would be put at risk of a head-on collision.
• In my view, Mr Ranger’s disregard of the clearly visible lane designations and control markings on the highway therefore should be regarded as dangerous, insofar as it created heightened risks to other members of the public who were present or might have been expected to be present on Highway 2.
[106] Fifth, the evidence confirms that, shortly before the accident, Mr Ranger was speeding; i.e., travelling in excess of the posted speed limit of 80 km per hour. In that regard:
• Each of the four witnesses say that their respective vehicles were going at or above the posted speed limit of 80 km per hour, and all say that Mr Ranger nevertheless passed them.
• As to precisely how fast Mr Ranger was speeding, the evidence is not consistent. However, it seems to me that the numerical estimates provided by most of the four witnesses, (and by Mr Scott, Mr Branco and Mr Borland in particular), reasonably must be viewed as an understatement. In particular:
o If Mr Ranger was going only 5-10 km per hour faster than Mr Scott, I think it unlikely that he would have been able to not only overtake multiple vehicles but also travel beyond Mr Scott’s field of immediate attention before the Scott vehicle arrived at the Shaw Road intersection; and
o The suggestion that Mr Ranger was going only 5-10 km per hour faster than the Branco vehicle seems very difficult to reconcile with the vocal reactions of surprise or alarm that were expressed when Mr Ranger went by, the perceptions of Mr Branco and Mr Borland that Mr Ranger “flew”, “zipped” or “zoomed” by, and the indications that Mr Ranger quickly out-distanced the Branco vehicle such that it simply “took off” and was “just gone”.
o In my view, such considerations strongly suggest that Mr Dietrich’s numerical speed estimate, of Mr Ranger travelling some 40-50 km per hour faster than the Branco vehicle, was much more accurate, and I prefer and accept his testimony in that regard. If Mr Branco’s evidence of his own speed was accurate, (and I have no reason to doubt that it was), Mr Ranger therefore was travelling at an estimated speed of approximately 130-140 km per hour when he passed the Branco vehicle.
[107] For all these reasons, in my view, various aspects of Mr Ranger’s manner of driving shortly before the accident were independently and collectively dangerous, insofar as they created heightened risks for members of the public who were present or might have been expected to be present on Highway 2.
[108] They in turn support an inference that Mr Ranger continued driving in such a manner during the relatively short span of time and geographic distance before the accident.
Manner of Accused Driving Immediately Before Collision
[109] However, such an inference and conclusion are buttressed and reinforced by additional evidence indicating the manner in which Mr Ranger was driving not only shortly but also immediately before the collision between the Ranger and Medeiros vehicles, particularly insofar as his speed and lane location are concerned.
[110] I turn first to the matter of Mr Ranger’s speed immediately before the collision.
[111] In that regard, there was little or no helpful testimony from eyewitnesses. In particular:
• Mr Medeiros said he had “no idea” as to the speed at which Mr Ranger’s vehicle was travelling;
• Ms Pimental confirmed that she was unable to provide any estimate of how fast Mr Ranger’s vehicle was moving;
• Mr McCarthy said he did not see Mr Ranger’s van at all prior to the collision; and
• Mrs McCarthy said she too did not notice Mr Ranger’s vehicle until after the collision, and did not know where it had come from.
[112] In my view, one nevertheless can extrapolate reliable indications of Mr Ranger’s speed immediately before the collision from the combined effect of:
• testimony indicating the speed of Mr Medeiros immediately before the first collision; and
• evidence concerning general movement of the Ranger and Medeiros vehicles immediately after that first collision.
[113] In referring to the latter type of evidence, I wish to make it clear that I am not looking at the collision itself as a basis for “leaping to a conclusion” that Mr Ranger’s driving immediately before the accident should be characterized as “dangerous”, simply because his driving ended with a collision.
[114] As previously noted, that kind of reasoning is fallacious and prohibited, (for the reasons emphasized by the Supreme Court of Canada in the authorities set forth above).
[115] I am instead relying on witness testimony, physical evidence generated by the collision, and basic laws of physics, (highlighted in expert testimony before me), that together provide indirect but strong evidence of how Mr Ranger’s vehicle physically must have been moving immediately before the collision. In particular:
• As an experienced expert collision reconstructionist, Constable Walker testified that two vehicles of approximately the same size and weight, travelling at the same speed, and colliding in an “offset” head on collision, (i.e., with the two front ends only partially overlapping each other as opposed to a full and direct head-on collision), should face and “rotate around one another”. (For example, if only the respective left front ends of two such similar vehicles collide, while moving at the same speed, they will rotate counter-clockwise around their mutual point of impact.) This will be the case unless one of the two similar vehicles has a higher speed, thereby enabling it to maintain its original course to some degree despite the impact, by essentially pushing the other vehicle out of its way. In his testimony, Mr Raftery did not question or dispute that basic proposition, which may reflect basic laws of physics but to me also seems to reflect common sense.
• In this case, Constable Walker testified that the two vehicles involved in the initial collision, (the Ranger and Medeiros vehicles), were two mini-vans of approximately the same size and weight. The photographic exhibits, as well as the diagrams prepared by Mr Raftery, (particularly his diagram outlining his suggested alignment of the Ranger and Medeiros vehicles at their time of impact), suggest and support the same conclusion.
• Photograph exhibits and testimony from Constable Walker confirmed that the Ranger vehicle and the Medeiros vehicle each sustained severe front end damage, (particularly crushing of front portions of the vehicle back towards the rear), which was more evident and prevalent on the “driver’s half” of each vehicle; i.e., on the front left side of each vehicle.
• Based on that damage to the front of the Ranger vehicle and the front of the Medeiros vehicle, Constable Walker concluded that the two vehicles did not collide in what was alternately described as a “complete”, “pure”, “in-line” or “100 percent” head on collision. Rather, Constable Walker concluded that it had been an “offset” head on collision in which, at the time of collision, approximately 50-70 percent of the Ranger vehicle’s left front end had overlapped with the Medeiros vehicle, and approximately 50 percent of the Medeiros vehicle’s left front had overlapped with the Ranger vehicle. Mr Raftery agreed that the two vehicles collided in an offset head on collision, and in a similar fashion, (although his diagram suggests a similar and approximately equal degree of percentage overlap for each vehicle, in excess of 50 percent).
• However, the evidence also clearly indicated that, when the Ranger and Medeiros vehicles collided, they did not “rotate around one another”. Instead, the Ranger vehicle continued to travel forward in the general direction in which it had been moving, (although it was deflected towards the south shoulder of the roadway, where it came to a rest facing southeast), whereas the Medeiros vehicle was stopped in its forward motion and pushed backwards, while being spun counter-clockwise, (before it was then hit on its left side by the McCarthy vehicle). Those general movements of the Ranger and Medeiros vehicles were confirmed by the final resting position of the Ranger vehicle, by the eyewitness testimony of Mr and Mrs McCarthy, and by the expert collision reconstruction evidence of Constable Walker and Mr Raftery. Relying on the physical damage sustained by the Medeiros and McCarthy vehicles in the second collision, Mr Raftery thought that the initial collision caused the Medeiros vehicle to spin counter-clockwise all the way from a westerly direction to a south-easterly direction before it was then struck again by the McCarthy vehicle. Constable Walker also agreed, in cross-examination, that the Medeiros vehicle had been rotated counter-clockwise to the southeast when it was struck by the McCarthy vehicle.
• Given those movements of the Ranger and Medeiros vehicles after the first collision, and the basic laws of physics outlined above, the inescapable conclusion is that these two vehicles, similar in shape and size, were not travelling at the same speed at the time of the collision. To the contrary, Mr Ranger’s vehicle must have been going considerably faster that the Medeiros vehicle, in order for it to basically “drive through” the Medeiros vehicle, “push it out of the way”, and rotate it in that manner, (to use some of the descriptive phrases employed by Constable Walker in his evidence, which I accept on this point). In cross-examination, Mr Raftery also agreed that the Ranger vehicle was “going faster” than the Medeiros vehicle at the time of the collision.
• Constable Walker and Mr Raftery both indicated that they had not performed any analysis to calculate Mr Ranger’s precise speed at the time of the collision. Constable Walker said he felt unable to come up with an accurate speed determination because there were “missing pieces of evidence” that he would need for such calculations. Mr Raftery could not recall with certainty whether he ever had been asked to make a speed calculation in this case, but in any event agreed with Constable Walker that he would be unable to do it “with any degree of meaningful accuracy”, “given the type of evidence that was available”.
• However, there was a good deal of consistent evidence confirming that, at the time of the first collision, (and indeed for a considerable time prior to that), the Medeiros vehicle was travelling at or very near the highway’s posted speed limit of 80 km per hour. In that regard:
o Mr Medeiros himself says he was “more or less” going that speed when he saw the Ranger vehicle immediately before the collision.
o When asked how fast Mr Medeiros was driving just before the collision, Ms Pimental said her son-in-law was going “the normal speed”, as he “always” did, (even though others might pass him).
o Mr McCarthy testified that he recalled following behind the Medeiros vehicle for approximately 10 minutes prior to the collision, at a constant distance of three to four car lengths, and that he was going 80 km per hour, which in turn indicates that the Medeiros vehicle was travelling at the same speed.
o Mrs McCarthy said she and her husband had travelled west along Highway 2 for approximately 15-20 minutes prior to the collision, with the Medeiros vehicle in front of them the entire time, with a separating distance of 3 to 3½ car lengths between the two vehicles that did not really change much. Mrs McCarthy says that she and her husband were travelling at the speed limit of 80 km per hour, and that the Medeiros vehicle was “going around the same”.
• If the Medeiros vehicle was travelling at 80 km per hour at the time of the collision, (and I find that it was), then that evidence, combined with the post collision vehicle dynamics noted above, means that Mr Ranger must have been going faster than 80 km per hour, and therefore still speeding, immediately before the collision. Moreover, in my view, he must have been travelling much faster than 80km per hour immediately before the collision, or his vehicle would not have been able to “drive through” the Medeiros vehicle, push it aside, and spin it in the manner that occurred.
[116] As noted above, speeding alone is capable of constituting dangerous driving, as it inherently creates heightened risks of damage or injury.
[117] However, there is also the matter of the lane in which Mr Ranger was travelling immediately prior to the accident, (which in turn involves a consideration of the lane in which Mr Medeiros was travelling just before the collision).
[118] As noted above, this was a primary focus of the parties at trial, with the Crown arguing that, immediately before the collision, Mr Ranger improperly crossed over into the westbound lane, in which the Medeiros vehicle was travelling.
[119] The defence, (while obviously not having to prove anything in this trial), argued strenuously that Mr Medeiros had in fact improperly crossed over into the eastbound lane, where Mr Ranger had been travelling on the correct side of the highway.
[120] At trial, I therefore was presented with considerable eyewitness testimony, and competing expert opinion evidence, relevant to a determination of the lane or lanes in which the Ranger and Medeiros vehicles were travelling prior to the collision.
[121] While that evidence relates in part to what happened at the time of the collision, and the interpretation of physical evidence created by the collision, (including vehicle damage, dynamics and marks left on the road), it should be emphasized once again that my true focus at this point is not the collision itself, but the manner in which Mr Ranger was operating his vehicle prior to the collision, (including the point in time immediately prior to the collision).
[122] Evidence created during and by the collision is potentially relevant to that inquiry only insofar as offers indirect indications of what must have been happening immediately before the collision.
[123] In particular, since failure to confine one’s vehicle to one’s own lane of traffic is dangerous to other users of a highway, it seems both relevant and appropriate to examine whether evidence generated during and by a collision supports reasonable inferences of where Mr Ranger’s vehicle physically was located before the collision.
[124] In my view, that once again is something quite distinct from using the fact of the collision to “leap to a collusion” that the manner in which Mr Ranger was driving should be characterized as dangerous simply because his driving ended with a collision.
[125] In determining what lane or lanes the Ranger and Medeiros vehicles were in prior to the accident, I turn first to the testimony of the lay witnesses.
[126] In my view, the vast majority of that testimony indicated directly or indirectly that Mr Medeiros was at all times travelling in his proper lane, on the portion of Highway 2 intended for westbound traffic, and that Mr Ranger improperly crossed over the dividing line of that highway, into that portion of the highway, immediately before the accident.
[127] In that regard, the testimony of Mr Medeiros included the following:
• The Medeiros home is actually located on Dundas Street (or Highway 2) itself, in the municipality of Dorchester, (a community approximately half way between the cities of London and Woodstock). Mr Medeiros says that he turned left out of his driveway on to Dundas Street, and then continued west along that street on his way towards London, where he was intending to have dinner. He says he was “going straight” into London, and was not “about to make any turns” before then. He says that his vehicle was operating properly, and that he had no difficulties with it prior to the collision.
• When asked about the number of lanes on Highway 2 in the area where the accident occurred, Mr Medeiros thought there were four lanes altogether on that particular stretch of highway, including two for westbound traffic, and that he was driving in the left of those two lanes. However, he also emphatically stated that he was “not counting the lanes … on the road” at the time of the collision. He also testified that, during his drive west along Highway 2, he did not, “at any point right up until the collision”, move out of the lane in which he had been travelling.
• Mr Medeiros said that, when he saw the vehicle he collided with, (which he described as another van), it was “very close”, (after “going like a snake” further back along the road), and that it was now coming up towards him in the lane Mr Medeiros was in. Mr Medeiros was sure that, when this was happening, he (Mr Medeiros), was still in the same lane in which he (Mr Medeiros) had been travelling.
• Mr Medeiros was adamant that it was Mr Ranger who was not in his proper lane. In particular, Mr Medeiros said that, if the driver of the oncoming van “was going in his proper lane, he would have avoided the impact”. When Crown counsel followed up on that answer by saying “Right, and so I take it he was not in that proper lane”, Mr Medeiros said “Of course not.”
• Mr Medeiros said he did not see the oncoming van do anything to try to move out of the path of the Medeiros vehicle.
• As for himself, Mr Medeiros said he had no time to apply his brakes, make any attempt to steer his vehicle in any way to avoid the collision, or “run anywhere”. (Mr Medeiros was cross-examined about a statement he is said to have made to Constable Reintjes after the collision, while Mr Medeiros was still trapped in his vehicle, suffering from extreme injuries described below. According to Constable Reintjes, Mr Medeiros initially said “I tried to move, but he moved with me”, and then said “My lane.” However, at trial, Mr Medeiros denied having any memory of such a statement, and disagreed with suggestions that he tried to move out of the way of the oncoming vehicle by moving his steering wheel.) Moreover, Mr Medeiros said he could not have avoided the oncoming van by a lane change to his right, as that “right lane” was “busy”. (In cross-examination, Mr Medeiros again indicated that there were vehicles in what he perceived to be the right westbound lane, such that there also would have been an accident had he been able to direct his vehicle there.) Mr Medeiros also said that he had no time to go “on towards the gravel” beside the asphalt, and that if he had done so he would have gone “straight into the ditch”.
[128] The testimony of Ms Pimental included similar indications about the lanes in which the Medeiros and Ranger vehicles were travelling before the collision. Her evidence in that regard included the following:
• She repeatedly said, again and again, that while travelling west along Dundas Street prior to the collision, she and Mr Medeiros were “always going straight”, in the same lane. She emphasized in various ways that, prior to the collision, the Medeiros vehicle was “always in that lane”, and “never left that lane”.
• She says that, when the vehicle that struck theirs first showed up, coming “at them” from the opposite direction, she and Mr Medeiros were still in their same lane, (which she described as “our lane”). She says that, when she first saw that other vehicle coming towards them, it was close and already in their lane, and that they were then “all going in that lane”. She said the accident then happened “very quickly”, and that there was only time for Mr Medeiros to say “Oh Jesus” before they “were hit right away”. She said there was “no way” for Mr Medeiros to do anything physically to avoid the collision because, in her words, “there was nowhere for us to go”.
• When asked for further information about the number of lanes going in each direction on Highway 2, when that other vehicle “came at” them, Ms Pimental said there was “just that one” lane for vehicles heading in their westbound direction, with gravel along its right hand side, and that she and Mr Medeiros still were going straight, in that lane. She nevertheless said there were two lanes for traffic going in the opposite direction.
[129] Mr McCarthy’s testimony included statements directed primarily to the location of the Medeiros vehicle and his own vehicle on the roadway, but in my view also provided direct indications of where the Ranger vehicle was not located, and indirect indications as to where the Ranger vehicle reasonably must have been prior to the collision.
[130] Mr McCarthy’s evidence in that regard included the following:
• He said that, at the point where he and his wife turned west onto Highway 2 (or Dundas Street) from Cobble Hill Road, Highway 2 had two lanes, with one going in each direction. To his knowledge, that did not change at any point from the time they turned west on Highway 2 up to the location of the collision, (approximately 50-100 feet west of where Highway 2 meets Fairview Road). Mr McCarthy also was able to confirm that stretch of Highway 2 had a broken line running down its centre, separating the two lanes of traffic.
• Mr McCarthy says that, before the collision, the only vehicle travelling in front of his on Highway 2 was the Medeiros vehicle, (which he described as a big brown van, which he could not see through). As noted above, Mr McCarthy testified that he followed behind the Medeiros vehicle for approximately 10 minutes prior to the collision, at a constant distance of three to four car lengths. He says that, up until the site of the collision, he never saw the Medeiros vehicle leave its lane, or do any type of driving that caught his attention in any way.
• Mr McCarthy says that, when the Medeiros vehicle reached the site of the collision, he was looking at the back of it from three to four car lengths away. He says he was “right where he should be, right in the centre of the lane”, and that the Medeiros vehicle was “right straight ahead” of him when he saw it suddenly “shake” or “jerk” before very quickly “spinning” or “turning” counter-clockwise, with its back end going to the right, such that Mr McCarthy suddenly went from looking at the back of the Medeiros vehicle to looking at its side, extending directly and completely across the westbound lane of travel.
• At trial, Mr McCarthy repeatedly said that he did not see the Medeiros vehicle make any sort of movements leading up to that moment of the “shudder” and “spin”, and that it moved with what seemed like a “jerk” rather than the turning of its wheels. In cross-examination, he repeated that the Medeiros vehicle “never made any move, except sideways”. In that regard, Mr McCarthy acknowledged making prior statements to Constable Reintjes, and at the preliminary hearing, suggesting that Mr Medeiros made a decision to “try and move”, and that the Medeiros vehicle may have made a sudden turn before it then went sideways. However, Mr McCarthy explained, both at the preliminary hearing and at trial, that he had been trying to put himself in the position of Mr Medeiros to “figure out” what he would have been doing “in his position”, and that he really had been “imagining”, without knowing, that Mr Medeiros “probably made a move with the steering wheel”. In other words, in some of his earlier statements, Mr McCarthy admittedly had combined observation with a degree of speculation. At trial, Mr McCarthy confirmed that he actually had not seen anything that looked like steering, and that he had been “just guessing” in that regard. In particular, he thought any observed turning movement of the Medeiros vehicle probably was impact related. In that regard, he insisted that there in fact had been not been two different events, (i.e., a steering or turning, followed by the sideways movement of the Medeiros vehicle), but that it had all happened in one and the same motion, over the course of “split seconds”.
• Mr McCarthy thought that, notwithstanding its spinning movement, the Medeiros vehicle did not leave his westbound lane of travel until the McCarthy vehicle then came into contact with it. However, he also candidly acknowledged that, once the Medeiros vehicle was spinning in front of him, he was focused on its side, which he was heading towards, and not looking at its front end.
• Mr McCarthy said that, once the Medeiros vehicle spun across his lane of travel, he applied his brakes but “really didn’t have time to aim anywhere”. His vehicle then hit the left side of the Medeiros vehicle, towards its rear axle, before coming to a stop.
• After the collision, Mr McCarthy forced his door open and, after seeing to his wife, walked over to see what had happened. It was only then that Mr McCarthy realized that the Medeiros vehicle had been involved in a head on collision, and saw the Ranger vehicle for the first time.
• In that regard, Mr McCarthy repeatedly indicated that, immediately before the Medeiros vehicle shook and spun counter-clockwise, he was able to see into “the other lane”, and any oncoming traffic. However, he did not see the Ranger vehicle there. In contrast, Mr McCarthy emphasized that he could not see through and directly ahead of the Medeiros vehicle. He therefore felt sure that the Ranger vehicle must have been in the lane directly ahead of the Medeiros vehicle, or partly there and in the other lane, immediately prior to the collision.
• Mr McCarthy said that, after the collision, he also noticed that there were other vehicles parked off to the right of the westbound lane, which may not have been parked a safe distance from the side of the road.
[131] As for Mrs McCarthy, she confirmed that she turned around towards the back of her vehicle “just before the collision”, (to quiet the couple’s dogs), and that by the time she redirected her attention forward again, in response to her husband’s braking action, the Medeiros vehicle had already been spun sideways and was sitting or moving sideways in the road, with its front end facing the east bound lane.
[132] In my view, however, this does not make the evidence of Mrs McCarthy irrelevant, particularly when it comes to a determination of the lane or lanes in which the Medeiros vehicle may have been travelling at the time of the collision. In that regard, I note the following:
• Mrs McCarthy confirmed that, from where she and her husband turned west on to Highway 2 from Cobble Hills Road, up until the area of the collision, the highway had just two lanes, with one lane “on each side” of the road, for traffic going in each direction.
• She says that the Medeiros vehicle, (also described by Mrs McCarthy as a “big brown van” that she could not see into), was “just driving straight ahead” in front of the McCarthys throughout the “whole time” of their 15-20 minute drive along Highway 2, up until the time of the collision, and had otherwise done nothing that drew her attention to its manner of driving.
• Ms McCarthy also confirmed that, when she last saw the Medieros vehicle, (prior to her turning around to quiet the dogs “just before the collision”), it was still “directly in front of” the McCarthys, and still approximately three car lengths ahead of them. As she was turning away from the front of her vehicle, she said the Medeiros van was doing nothing remarkable, or anything that would catch her attention.
• Mrs McCarthy said that, prior to her husband’s braking action, there was nothing in the way of sights, sounds or other actions that alerted her in any way that something such as a collision was about to happen.
• In trying unsuccessfully to recall where the nose of the Medeiros vehicle was in relation to the centre of the highway, when she turned around and saw it sitting or moving sideways, Mrs McCarthy did recall and mention that there was a line dividing the highway in the area of the collision, (although she could not say whether it was solid or broken).
• Ms McCarthy confirmed in cross-examination that her husband did his best to avoid the second collision by hitting his brakes, but there was “no swerving” on his part.
• Like her husband, Mrs McCarthy did not see or notice the Ranger vehicle until sometime after the collision, when all the vehicles had come to rest, and she was surprised to learn shortly after the accident that the Medeiros vehicle had been involved in a head on collision.
[133] In my view, the oral testimony from these four lay witnesses clearly points to a conclusion that the Medeiros vehicle was in its proper westbound lane at the time of the initial collision.
[134] Moreover, when combined with the physical damage to the Medeiros and Ranger vehicles, indicating the extent of the two vehicles’ front end overlap at the time of their impact, the oral testimony also indicates indirectly but clearly that Mr Ranger must have crossed substantially if not completely into the westbound lane immediately before that initial impact, (which is entirely consistent with Mr McCarthy’s explanation as to why he was unable to see Mr Ranger’s vehicle in the oncoming lane, or indeed have any idea of its existence, and the fact of any head on collision involving the Medeiros vehicle, until sometime after all the vehicles had come to rest).
[135] In the course of submissions, defence counsel seized on the answers Mr Medeiros gave indicating a mistaken belief that the highway was four lanes at the point of collision and that he was in the left westbound lane, as well as his indication that there were vehicles to his right preventing a safe evasive manoeuvre in that direction.
[136] In particular, it was argued on behalf of the defence that those answers effectively should be taken as a conclusive indication or admission that Mr Medeiros mistakenly had crossed into the eastbound lane of traffic before the collision, owing to suggested confusion caused by the widening of the highway’s eastbound lane at that point.
[137] For numerous reasons, I reject that suggested interpretation of the oral testimony, and the corresponding defence theory that the Medeiros vehicle mistakenly had crossed into the eastbound lane of Highway 2.
[138] First, Mr Medeiros saying that he was travelling in the left westbound lane of a four lane highway, and that there were other vehicles in a lane to his right, is by itself still consistent with an indication that he remained on his proper side of the highway.
[139] Second, it seems to me that there are some obvious and entirely rational explanations for the emphasized answers of Mr Medeiros that do not call for a conclusion that he somehow must have crossed over into the eastbound lane. In particular:
• The police witnesses, police diagrams, and diagrams prepared by Mr Raftery all confirm that the eastbound and westbound lanes both appeared to widen considerably near the scene of the accident. (As noted above, the eastbound lane widened at that point to create an unmarked turning area for eastbound vehicles slowing to make a left hand turn onto Fairview Road, with ongoing eastbound traffic still having room to pass such turning eastbound vehicles on the right without having to stop. However, the westbound lane also appeared to widen at the same location, owing to the presence of the aforesaid exceptionally wide driveway entrance located on the north side of the road at 4576 Dundas Street; a driveway “entrance” which actually extended along the side of the westbound lane for the entire length of the collision scene depicted in the various photographs and diagrams.)
• Moreover, witnesses other than Mr Medeiros, (including Mr McCarthy and Mr Dietrich), observed and confirmed that there were other vehicles parked in that exceptionally wide driveway area, near the side of the dedicated highway, at the time of the accident. Mr Dietrich testified that the “exceptionally wide driveway” in question was in fact a used car lot, and that at least one vehicle associated with that used car lot was parked so close to the north side of the road, and so near to the three vehicles involved in the collision, that Mr Dietrich thought it too had been part of the accident.
• There accordingly are reasons why Mr Medeiros, while still travelling in the same lane he previously had been using, and on the proper side of the highway, mistakenly may have thought the highway may have widened near the site of the collision, so as to create an additional lane to his right. (As he emphasized, he understandably was not focused on counting the precise number of lanes immediately before the collision, when there was an oncoming car in his lane.) Similarly, the indication by Mr Medeiros that there were vehicles in that perceived additional lane, preventing a safe evasive move in that direction, was in fact accurate – had it indeed been a lane and not a used car lot. In my view, the emphasized answers of Mr Medeiros therefore do not mean that he necessarily must have been travelling in the eastbound lane.
[140] Third, three of the relevant lay witnesses, (Mr Medeiros, Ms Pimental and Mr McCarthy), expressly and clearly say that the Medeiros vehicle was in its proper westbound lane at the moment of the collision, and the fourth relevant lay witness, (Mrs McCarthy), expressly and clearly says that the Medeiros vehicle was in that proper westbound lane "just before" the collision. Acceptance of the defence theory requires a conclusion that all four of these witnesses are not only mistaken, but that not one of them happened to notice that both the Medeiros vehicle, and the McCarthy vehicle following straight behind it, somehow had crossed over the broken dividing line of Highway 2 and into the eastbound lane. In my view, the three witnesses looking forward at the time of the collision, (Mr Medeiros, Ms Pimental and Mr McCarthy) realistically would not have missed that, and even looking backwards, it seems something unlikely to have escaped Mrs McCarthy's attention. The suggestion that all four witnesses missed noting such an error seems fanciful in the extreme.
[141] In that regard, I note in particular that Ms Pimental was quite aware that the side of the highway intended for eastbound traffic had doubled in width at that point, while the side of the highway intended for westbound traffic had not. She expressly indicated her belief that, at the point of the collision, Highway 2 had two eastbound lanes but only one westbound lane. She nevertheless was still quite sure that she and Mr Medeiros were travelling in the one westbound lane.
[142] Fourth, the suggestion that Mr Medeiros and/or Mr McCarthy somehow would have been confused by the situation, (i.e., the widening of the highway at that location), seems entirely implausible to me. All those two completely sober drivers had to do was continue driving in a straight line, to the right of the broken centre line dividing the two lanes of the highway, in their lane of standard sized width, as they already consistently had been doing, without deviation, for many miles along Highway 2, for the previous 10 to 20 minutes. Of the two drivers involved in the initial collision, it seems much more plausible that confusion was experienced by the highly intoxicated Mr Ranger. In particular:
• Shortly if not moments before the accident, Mr Ranger had been travelling east on a four lane highway, where he was changing lanes, and able to choose and move between two available eastbound lanes divided by a broken line.
• In a short space of time, the situation facing Mr Ranger was transformed into one involving a two lane highway, where any continued use of a lane to the left of the broken line would put his eastbound vehicle improperly in the lane intended for westbound traffic.
• Immediately before the collision, it therefore was Mr Ranger, and not Mr Medeiros, who was having to recognize and adjust to significantly changed road conditions, and make necessary modifications to his recent pattern of driving, in order to ensure operation of his vehicle in a safe manner. In my opinion, that inevitably would have been more challenging in Mr Ranger’s very inebriated condition.
[143] Fifth, even if one accepts that Mr Medeiros made his alleged statement to Constable Reintjes about trying to move, but that Mr Ranger moved with him, and/or that Mr McCarthy observed a sudden turning or steering movement of the Medeiros vehicle in the “split seconds” before it began spinning counter-clockwise, none of that evidence is inconsistent with Mr Medeiros still being in his lane at the time of the collision. More to the point for present purposes, it seems to me that evidence of Mr Medeiros attempting to execute a sudden and abrupt turning manoevre immediately before the collision, (in contrast to the steady, straight and entirely unremarkable driving he had been doing in his same lane for the previous 10-20 minutes), strongly suggests that he was reacting to some kind of new and unexpected situation – such as Mr Ranger’s vehicle coming directly towards him in the westbound lane.
[144] Sixth, in my view, the suggestion of the Ranger vehicle having been entirely in the eastbound lane, and the Medeiros vehicle having been in that same eastbound lane, immediately prior to the collision, does not accord with my view of the physical evidence created and left by the accident, and the accident-created roadway markings in particular.
[145] Before turning to that physical evidence, and the competing interpretations placed upon it by the parties’ collision reconstruction experts, I emphasize once again that I am not looking at the collision itself as a basis for “leaping to a conclusion” that Mr Ranger’s driving immediately before the accident should be characterized as “dangerous”, simply because his driving ended with a collision.
[146] I instead am relying on physical evidence, generated by the collision, to extrapolate reasonable inferences of where Mr Ranger’s vehicle physically must have been located immediately before the collision, which in turn has a bearing on my assessment of the manner in which he was driving before that collision, regardless of that collision.
[147] Evidence of marks on the road created by the accident was documented by Constable Walker and his team using, amongst other things, a data collector program and associated equipment used to collect and record precise measurements and location data at a collision scene, (in what is known as a “Total Station Survey”), which in turn then can be utilized to draw precise scale diagrams.
[148] This was supplemented by field notes, photographs and a video of the collision scene.
[149] In the result, the documented road marks thus recorded at the relevant accident scene included:
• tire scuff marks, (created by impurities in the asphalt being heated up by a tire sliding across it);
• scrapes or shallow gouges, (created by metal scratching along the surface of asphalt); and
• deeper gouges, (created by chipping away of the asphalt surface, usually by something metallic digging into the asphalt and causing more pronounced indentations in the surface of the roadway).
[150] For the purpose of identifying and discussing these various markings, I find it useful to employ the helpful identification labels created and applied by Mr Raftery in his “Enlarged Collision Scene Diagram”, found at page 2 of Exhibit 16. That diagram, (created using the same Total Station Survey data and measurements employed by Constable Walker), shows the location and dimensions of the road markings on Highway 2, in relation to the final resting positions of the Ranger, Medeiros and McCarthy vehicles after the accident.
[151] Using those labels, the documented road markings include the following:
• Tire mark 1, which is a curved tire mark that begins in the westbound lane, just slightly north of the broken dividing line of Highway 2 that separates eastbound and westbound traffic, but then proceeds in a general southeastern direction into the eastbound lane, (although its curvature progressively redirects it more and more towards the east);
• Tire marks 2 and 3, which are parallel marks located entirely in the westbound lane, (north of the highway’s dividing line), which run in an east-west direction in almost perfect alignment with the direction of the highway and its line markings;
• Gouge marks A and B, which were deeper and roughly parallel gouge marks, (shorter in comparison to the more shallow scrapes or Gouge marks C and D discussed below), that begin at points in the eastbound lane, close to but south of the dividing line, and slightly southwest of the most westerly point of Tire mark 1;
• Gouge marks C and D, which are less prominent but more extended gouge marks that are roughly parallel but of unequal length, (although both are longer in comparison to Gouge marks A and B), which begin in the eastbound lane southeast of Gouge marks A and B; and
• Gouge mark E, which is a prominent and unusual “U” shaped gouge mark that begins in the eastbound lane, curves in an arc across the dividing line of the highway, and then curves back to end in the westbound lane.
[152] Although Constable Walker and Mr Raftery placed very different interpretations on certain aspects of this physical evidence, it also seemed to me that other aspects and interpretations of that evidence were not in dispute.
[153] For example, I do not think one needs expertise to realize that Tire marks 2 and 3 were created by the westbound McCarthy vehicle, (as Mr McCarthy forcefully applied his brakes in an effort to avoid hitting the Medeiros vehicle after it had been forced backwards and spun clockwise across the westbound lane by the forces created in the first collision between the Ranger and Medeiros vehicles).
[154] No one seemed to dispute that, and I think it would be impossible to do so, as Tire marks 2 and 3 run directly to the tires of the McCarthy vehicle where it came to a stop after the second collision.
[155] However, I pause to note that Tire marks 2 and 3 therefore place Mr McCarthy’s vehicle exactly where he said it was prior to the second collision; i.e., heading straight ahead down the centre of the westbound lane.
[156] If the Medeiros vehicle was straight ahead of the McCarthy vehicle at the time of the initial collision, (and I accept Mr McCarthy’s testimony that it was), then Tire marks 2 and 3 actually provide indirect evidence that the Medeiros vehicle also was proceeding straight ahead, entirely in its proper westbound lane, immediately before the initial collision. Given the overlap damage to the front of the Ranger and Medeiros vehicles, Mr Ranger therefore must have crossed over into the westbound lane of traffic immediately before the collision.
[157] Turning to the other marks left on the road by the accident, it seemed to me that Gouge mark E also was not terribly controversial. In that regard:
• It apparently was agreed that Gouge mark E somehow had been created by Medeiros vehicle, during its accentuated counter-clockwise rotation following the second collision, when it was struck by the McCarthy vehicle.
• In other words, all concerned seemed to accept that Gouge mark E was not created by the forces and vehicle dynamics resulting from the first collision.
• Mr Raftery’s diagram at page 4 of Exhibit 16, (created using the combined physical evidence of Tire marks 2 and 3, and the damage sustained by the McCarthy and Medeiros vehicles in the second collision, to then align the two vehicles, and determine the position of the Medeiros vehicle immediately before the second collision), shows how that may well have happened.
• In particular, Mr Raftery suggested that Gouge mark E may have been made by something along the underside of the engine compartment of the Medeiros vehicle, which he says may have been likely, as the vehicle’s left front corner was down while its other three wheels were still in place and on the ground at the time of the second collision.
• However, I pause to note my view that it seems equally plausible and possible, if not probable, based on Mr Raftery’s comments, and photographs of the accident scene and vehicle damage, that if the left front wheel of the Medeiros vehicle was “down”, and may no longer have had any rubber on it at the time of the second collision, the metal hub or rim of that left front wheel may very well have been what ground into the asphalt as the entire Medeiros vehicle then was spun counter-clockwise again by the force of the second collision. Indeed, that is the clear indication I take from the aforesaid diagram created by Mr Raftery and located at page 4 of Exhibit 16 which, again, uses the damage sustained by the McCarthy and Medeiros vehicles in the second collision to determine the location of the Medeiros vehicle prior to the second impact. That diagram seems to place the eastern commencement of Gouge mark E directly under the left front wheel of the Medeiros vehicle. (In my view, that observation and conclusion has relevance to the interpretation and significance of Tire mark 1, discussed below.)
[158] There also seemed to be no dispute that Gouge marks C and D were created by the damaged Ranger vehicle, as it travelled southeast to the right shoulder of the highway after its collision with the Medeiros vehicle.
[159] In that regard, I once again think it takes little expertise to realize that such a conclusion, in relation to Gouge marks C and D, is sensible and beyond reasonable dispute. (Mr Raftery indicated as much during the course of his examination in chief.) Those two gouge marks clearly lead almost directly to the damaged Ranger vehicle on the south shoulder, and align with the direction in which the Ranger vehicle came to a rest. In particular, they clearly line up with the left or driver’s side of the Ranger vehicle.
[160] It seemed to me that the controversy over the physical evidence therefore centred on Gouge marks A and B, and Tire mark 1.
[161] In Constable Walker’s expert opinion, Gouge marks A and B align with Gouge marks C and D, and for similar reasons, clearly were created by the damaged Ranger vehicle. Moreover, they were deeper and more pronounced than Gouge marks C and D, which is what one would expect of gouges closer to the point of impact. (Gouges tend to become scrapes as they move further away from the point of impact.)
[162] As for Tire mark 1, Constable Walker believes it clearly was created by the left front tire of the Medeiros vehicle, and as the commencement of that mark begins north of the highway’s dividing line, that obviously would place the Medeiros vehicle in its proper westbound lane at the time of the initial collision.
[163] Mr Raftery, however, suggested quite a different interpretation of that physical evidence relating to Gouge marks A and B, and Tire mark 1. In particular:
• Mr Raftery thought Gouge marks A and B would have been created almost immediately after the impact, (as he said, within “milliseconds”), by the physical damage sustained by the Medeiros vehicle.
• Since Gouge marks A and B were located south of the highway’s dividing line, in the eastbound lane, that in turn would put the Medeiros vehicle substantially in the eastbound lane at the time of the collision.
• Combined with the overlap in frontal damage to the Medeiros and Ranger vehicles, that in turn would put the Ranger vehicle entirely in the eastbound lane at the time of the initial collision.
• Mr Raftery then thought Tire mark 1 was consistent with that view, insofar as it arguably put the Medeiros vehicle in a position where its right front tire would have been near to the western starting point of Tire mark 1, just north of the highway’s dividing line, which obviously would place the bulk of the Medeiros vehicle on the wrong side of the highway, in the eastbound lane.
• Mr Raftery thought additional support for that conclusion, in relation to Tire mark 1, was offered by suggested alignment of Tire mark 1 with the right front tire of the Medeiros vehicle at the point where it likely would have been located prior to the second collision.
[164] However, I found Mr Raftery’s interpretation of the physical evidence and resulting opinion problematic for a number of reasons, some of which were high-lighted by Crown counsel during cross-examination.
[165] First, Mr Raftery’s opinion was premised in large measure on his view that Gouge marks A and B were created on the road surface almost immediately at the point of first contact between the Ranger and Medeiros vehicles, (again, within “milliseconds”), and that gouge marks would have been made at that point by the area of the Medeiros vehicle below its front engine compartment. As a corollary, Mr Raftery obviously was of the view that the marks would not have been created by the Ranger vehicle. However:
• During the course of cross-examination, Mr Raftery was taken to an extract from a textbook on Traffic Crash Reconstruction, authored by Professor Lynn B. Fricke of the Northwestern University Center for Public Safety in Evanston, Illinois. This was precisely the same text that Mr Raftery supplied to defence counsel as an authoritative text for defence counsel’s use during the cross-examination of Constable Walker, (according to indications made by defence counsel at the time).
• In particular, Mr Raftery was taken to an extract on page 116 of Professor Fricke’s text, which was accompanied by a diagram on the same page labelled “Exhibit 45”. The relevant passage and corresponding diagram seemed to clearly indicate that, in what was described as a “common situation”, where both vehicles involved in a head on collision are “essentially the same size”, but one vehicle is “going much faster than the other vehicle”, the faster vehicle will push the other vehicle backward, such that, even though the fronts of the two vehicles are forced into the pavement to make gouges, gouges do not occur as close to first contact as they do in other situations where vehicles are travelling closer to the same speed at the time of collision. In cases involving a faster moving vehicle, the difference in distance from first contact to the point of “maximum engagement”, (where one expects the creation of gouge marks in the road), will be greater.
• In my view, that observation clearly has application to this case, since the evidence is clear, for the reasons outlined above, that the Ranger vehicle was travelling much faster than the Medeiros vehicle when the two vehicles collided. It therefore would have pushed the Medeiros vehicle backwards before gouge marks were created on the roadway and, as a matter of common sense, it seems to me that the relevant “push back” and difference in distance from first contact to maximum engagement, and the leaving of gouge marks, would increase with the speed differential between the two vehicles. It therefore seems entirely possible if not probable to me that Gouges A and B were made significantly further to the east of the point where the two vehicles initially collided, thereby substantially undermining a fundamental premise used by Mr Raftery in his suggested initial placement of the two vehicles.
• I frankly was not at all impressed by Mr Raftery’s responses to this point when it was raised in cross-examination. Although he attempted to suggest that the Fricke text was worded awkwardly, and that he did not understand what was being suggested, it seemed to me that the point was perfectly clear and inconsistent with a fundamental premise of Mr Raftery’s opinion. Instead of accepting the relevant proposition immediately, Mr Raftery did so only belatedly and reluctantly in cross-examination and re-examination, agreeing that there would be some horizontal movement of two such vehicles between the time of their first contact, and the moment that crushing occurs and the gouging is created”, while at the same time continuing to argue that such movement would be minimal.
[166] Second, another fundamental premise of Mr Raftery’s opinion was a suggested “elbow” extension to the southeast end of Gouge mark B, heading to the east; an extension which effectively would suggest a redirection of that mark away from the final resting place of Mr Ranger’s vehicle, and towards the location where the Medeiros vehicle would have been located prior to the second collision. However, I was not impressed by that suggestion either. In particular:
• Given the nature and timing of his retainer, Mr Raftery understandably was not present at the accident scene to make direct observations of the accident-related road markings in the immediate aftermath of the relevant collisions. Indeed, he acknowledged that he personally did not attend at the scene of the accident until the summer of 2013, almost 2 ½ years after the accident, when all physical traces of the accident admittedly had vanished.
• Mr Raftery therefore was obliged to rely on the evidence of road markings documented by the police collision reconstruction experts, including Constable Walker.
• The Total Station Survey carried out by the police collision reconstruction experts did not indicate any “elbow” extension and turn to Gouge B, as suggested by Mr Raftery. However, Mr Raftery nevertheless suggested that such an extension and turn of the relevant gouge were visible in what was labelled photograph 0036 in the “Booklet of Police Collision Scene Photographs” entered as Exhibit 17 in the trial.
• I must say that, whatever Mr Raftery thinks he may see in that admittedly blurry photograph, I do not share his view that there is any definite and discernible elbow extension to Gouge B, as he suggests. To the contrary, in my view, the absence of any such elbow extension is confirmed by the photograph labelled 0035 in Exhibit 17, which depicts the same Gouge B, but in much clearer detail.
• More generally, I find it difficult to accept that the police collision reconstruction experts documenting the accident scene, in its immediate aftermath, simply “missed” or otherwise failed to document a significant mark of that nature while clearly documenting the remainder of the same gouge mark.
[167] Third, I have great difficulty accepting Mr Raftery’s suggestion that Tire mark 1 was created by the right front tire of the Medeiros vehicle, rather than the vehicle’s left front tire. In that regard:
• It seemed to me that Mr Raftery’s suggestion in that regard was somewhat conclusion oriented, insofar as suggested placement of the right front tire of the Medeiros vehicle at the start of Tire mark 1 conformed to Mr Raftery’s view that Gouge marks A and B must have been created by the engine block of the Medeiros vehicle almost instantaneously after the initial impact between the Ranger and Medeiros vehicles. The strength of the Tire mark location is undermined by the weaknesses in Mr Raftery’s gouge mark theory, noted above.
• Moreover, although Mr Raftery suggested that Tire mark 1 generally aligned with the reconstructed position of the Medeiros vehicle’s right front tire prior to the second collision, (as suggested by the diagram created by Mr Raftery and once again found at page 4 of Exhibit 16), I do not share that view. In particular, I do not think drawing an appropriate conclusion is as simple as drawing a straight line from the Tire mark 1 to the estimated location of that right front tire, as Mr Raftery and defence counsel seemed to suggest. The reality is that Tire mark 1 is not a straight line. It actually curves in an arc and, in my view, when one continues that arc, it actually aligns more directly with the left front tire of the Medeiros vehicle, in its estimated location prior to the second collision, (again looking at the diagram on page 4 of Exhibit 16).
• Furthermore, in my opinion, the making of Tire mark 1 by the left front tire of the Medeiros vehicle seems far more consistent with the forces exerted by the collision and the observed damage (or lack thereof) to the various wheels of the Medeiros vehicle. In particular:
o As repeatedly noted above, this was an offset collision, in which the much faster Ranger vehicle hit and pushed back the front left area of the Medeiros vehicle, spinning the Medeiros vehicle counter-clockwise. It seems to me that such vehicle dynamics made the left edge of the left front tire the “leading” edge of what was being pushed along the roadway, as far as the Medeiros vehicle was concerned.
o It also seems obvious to me such an offset collision and resulting vehicle dynamics naturally would have created more downward pressure on that tire, (conducive to the creation of a tire mark as it moved sideways over the pavement), as well as other significant stress on that left front tire likely to result in damage. (In response to one of my questions in that regard, Mr Raftery himself indicated that the tire mark is likely to have started at the point of impact because that is when the forces acting on both vehicles are most significant – and in this case, the impact was focused on the left front side of the Medeiros vehicle.)
o Such damage to the left front tire, prior to the second collision also, to me, seems consistent with the photographs of damage to the Medeiros vehicle, and creation of Gouge mark E, in the manner described above.
o In contrast, there appears to be relatively minimal damage to the other three wheels of the Medeiros vehicle, which “stayed up”, as noted by Mr Raftery. It was only the left front wheel that eventually dropped during the course of the two collisions.
o Once again, I was not impressed by the manner in which Mr Raftery responded to such points when they were put to him in cross-examination. In particular:
▪ Although he acknowledged that damage to the left front tire of the Medeiros vehicle was consistent with its having caused Tire mark 1, before then having come off its rim, he seemed extremely reluctant to concede the point.
▪ Moreover, in my opinion, he failed to offer any credible explanation as to why the left front tire did not make Tire mark 1, or why it was more likely, (apart from use of the gouge marks to place the location of the Medeiros vehicle at the time of impact), that the right front vehicle made that tire mark.
▪ Mr Raftery noted that lateral forces on the right front tire may have produced a negative camber, but again, I did not understand why similar and perhaps far greater lateral forces on the left front tire could not have caused, in whole or in part, the more significant damage sustained to that left front tire while it possibly was making Tire mark 1.
▪ Furthermore, while Mr Raftery suggested that the less damaged right front tire of the Medeiros vehicle was more likely to have created Tire mark 1 because it still had rubber on it after the accident, and rubber obviously is necessary to create a tire mark. I frankly do not understand how this negates the possibility of the left front tire having made the relevant mark before it then sustained excessive damage and came off its rim, as a result of the first and/or second collision. Mr Raftery repeatedly asserted that the left front tire of the Medeiros vehicle must have been torn away from its rim at the time of the initial impact, rather than being torn away by movement of the Medeiros vehicle after impact, but in my view he really offered no reasons for that assertion.
[168] In short, I prefer Constable Walker’s view that Gouge marks A and B were also created by the Ranger vehicle. I share his view that those gouge marks align with Gouge marks C and D, which clearly were made by the Ranger vehicle.
[169] For the reasons outlined above, I also accept Constable Walker’s view that Tire mark 1 was created by the left front tire of the Medeiros vehicle, thereby placing the Medeiros vehicle entirely in its proper westbound lane at the time of the initial collision – which in turn means that Mr Ranger must have been travelling substantially on the wrong side of the road immediately before the collision, (given the overlap in the two vehicles’ front end damage).
[170] As already indicated above, I therefore think the physical evidence, properly interpreted, is simply not consistent with the suggestion that the Medeiros vehicle somehow crossed the dividing line of the highway to collide with Mr Ranger’s vehicle while it was travelling entirely in the eastbound lane.
[171] To the contrary, I think the physical evidence, properly interpreted, is consistent with the oral testimony of Mr Medeiros, Ms Pimental and Mr and Mrs McCarthy, insofar as it places the Medeiros vehicle entirely in its proper westbound lane of traffic immediately prior to the collision.
[172] Again, that in turn supports a conclusion that Mr Ranger must have improperly been travelling substantially on the wrong side of the road immediately before the collision.
[173] Based on the above oral testimony and physical evidence, I therefore find as a fact that, immediately before the initial collision between the Ranger and Medeiros vehicles, Mr Ranger was driving wholly or in large measure on the wrong side of the road, in the westbound lane, while Mr Medeiros was driving entirely within his proper westbound lane.
[174] Before leaving this topic, I will comment briefly on an issue that arose during the course of trial, and prompted an extended adjournment to enable the defence to address certain testimony of Constable Walker that was said to be unexpected.
[175] In particular, Constable Walker indicated, during the course of his examination-in-chief, that a perceived marked indentation in the front end damage to the Medeiros vehicle supported a view that Mr Ranger’s vehicle had hit the Medeiros vehicle on a slight angle, and therefore was moving from left to right, (i.e., from the westbound lane towards the eastbound lane), when the two vehicles collided.
[176] In cross-examination, the defence essentially questioned how such vehicle damage, (the existence and nature of which was disputed), could by itself possibly indicate how Mr Ranger’s vehicle would have been moving at the time of impact.
[177] The same issue was raised in closing argument.
[178] In that regard, I certainly agree that such evidence alone would be insufficient to provide such an indication.
[179] At most, it might suggest an alignment of the two vehicles at the time of impact, but I think such a determination would be meaningless in terms of suggesting how the vehicles may have been moving at the point of impact, in the absence of further information and evidence to suggest how the vehicles were placed on the roadway at the relevant point of time.
[180] For example, if the front left corner of Mr Ranger’s vehicle came into contact with the front of the Medeiros vehicle at a sharper angle, leaving a more pronounced indentation in the front of the Medeiros vehicle at the point of contact, it seems to me that such evidence alone would be consistent with at least two very different scenarios:
i. That the Medeiros vehicle was going straight and westbound in its lane, when the Ranger vehicle collided with it while travelling in a southeast direction, while trying to regain the eastbound lane; and
ii. That the Ranger vehicle was going straight and eastbound in its lane, when the Medeiros vehicle turned into its path while travelling in a southwest direction, for whatever reason.
[181] However, it also seemed clear to me that Constable Walker was not disputing the basic proposition that vehicle damage alone would not indicate whether either of the vehicles, (and the Ranger vehicle in particular), was moving from left to right or vice versa at the time of the collision.
[182] To the contrary, Constable Walker expressly indicated that he would “need more evidence than just the [vehicle] damage alone” to reach such a conclusion; he would “have to utilize the scene evidence as well in order to make that finding”.
[183] In other words, Constable Walker indicated and emphasized, repeatedly in my view, during examination in chief and then again in cross-examination, that he was looking not only to evidence of vehicle damage, but to the physical evidence as a whole, including the markings on the road.
[184] For example, if that additional evidence was sufficient to establish that the Medeiros vehicle was facing west and travelling properly in its own lane at the time of the collision, and/or that Mr Ranger’s vehicle travelled in a southeast path to arrive at its final resting place, that might, in conjunction with the vehicle damage evidence suggesting that the two vehicles collided on more of an angle, lend some support to a conclusion that Mr Ranger was moving from left to right at the time of the collision.
[185] For present purposes, I nevertheless emphasize that I do not think such additional considerations necessary for my conclusion, based on the other reasons set forth above, that Mr Ranger was travelling on the wrong side of the road immediately before the initial collision.
Conclusion Regarding Actus Reus of Dangerous Driving
[186] Based on the above evidence, I therefore am satisfied that, shortly and immediately before the collision between the Ranger and Medeiros vehicles, Mr Ranger’s operation of his motor vehicle on this busy highway included:
• speeding excessively;
• ignoring or disregarding clearly visible lane designations and control markings on the highway; and
• driving on the wrong side of the road.
[187] It must be recognized that driving, despite being legal activity with obvious social value, also is inherently risky. See R. v. Beatty, supra, at paragraph 34.
[188] In my view, however, each of the above driving activities engaged in by Mr Ranger shortly before the accident heightened such risks, creating dangers to the public who were either present on Highway 2 at the relevant time, or who might have been expected to be present. In particular:
• Speeding is inherently dangerous, as it magnifies the risk of a driver losing and/or being unable to regain control of his or her vehicle, the risk of a driver being unable to stop or otherwise respond to unexpected situations, the risk that other drivers will be rapidly confronted with unexpected situations that they too are then unable to avoid, and the risk that any resulting accident may have more devastating consequences.
• Ignoring or disregarding lane designations and control markings on the highway is also inherently dangerous, as it runs counter to the legitimate expectations of other drivers that such designations and marks will be observed and obeyed, and therefore undermines predictability of other vehicle movement.
• Driving on the wrong side of the road self-evidently creates the danger of collisions with oncoming traffic travelling on its proper side of the roadway. In my view, those obvious and significant dangers are even greater on two lane highways, (as compared to highways with a greater number of lanes intended for travel in each direction), as those confronted with a driver travelling on the wrong side of the road are likely to have reduced opportunities for evasive action.
[189] Moreover, the heightened risks to the public thus created by Mr Ranger’s driving were further accentuated by the reality that Mr Ranger was engaged in each of the above driving behaviors while having a blood alcohol content more than twice the legal limit, and while he was substantially impaired, thereby further reducing his ability to keep his vehicle under control, or otherwise react to and deal with any hazards created by such heightened risk driving activities.
[190] The above evidence and considerations are sufficient to satisfy me beyond a reasonable doubt that Mr Ranger’s driving shortly and immediately before the accident, viewed objectively, was dangerous to the public in all the circumstances.
[191] In other words, the above evidence and considerations are sufficient to satisfy me that the actus reus of “dangerous driving” has been proven beyond a reasonable doubt.
MENS REA
[192] I turn then to the mens rea requirement of dangerous driving, and application of the relevant “modified objective test”.
[193] In that regard, I begin by noting that I was provided with no evidence about Mr Ranger’s state of mind; i.e., any evidence that might indicate a subjective mens rea. However, as noted above, proof of subjective mens rea is not essential.
[194] The presence of objective mens rea is instead determined by assessing Mr Ranger’s dangerous conduct as against the standard expected of a reasonably prudent driver, to see if the lack of care is serious enough to merit punishment.
[195] In this case, posing and answering the two questions suggested by the Supreme Court of Canada:
i. Having regard to all the relevant evidence, I think a reasonable person would have foreseen the risks created by the various types of objectively dangerous driving in which Mr Ranger was engaged, and taken steps to avoid it if possible. A reasonable person would have known that speeding, ignoring or disregarding lane controls and markings, and travelling on the wrong side of the road, on this busy highway, each would carry the sort of risks identified above. A reasonable person would have known that engaging in any of those driving behaviours while extremely intoxicated would only have made matters worse. A reasonable person would have taken care to avoid such dangers by travelling the speed limit, observing and following the lane directional markings, and generally staying to his or her own side of the highway. A reasonable person would not have taken to the road at all in such an intoxicated condition.
ii. In my view, Mr Ranger’s excessive speeding and driving on the wrong side of the highway each independently constitute a “marked departure” from the standard of care normally expected of a reasonable person in his circumstances, and the combination of all the dangerous driving behaviors identified above, all while substantially inebriated, most certainly does.
[196] In other words, the above evidence and considerations are sufficient to satisfy me that the mens rea of “dangerous driving” has been proven beyond a reasonable doubt.
CONCLUSION
[197] In my view, the Crown accordingly has proven, beyond a reasonable doubt, that Mr Ranger operated his motor vehicle in a manner dangerous to the public prior to the collision.
Causation
[198] The analysis set forth above is sufficient to warrant findings of guilt in relation to the lesser and included offences of:
• Impaired operation of a motor vehicle, in relation to counts 1, 2 and 3 of the indictment;
• Dangerous driving, (or dangerous operation of a motor vehicle), in relation to counts 4, 5 and 6 of the indictment; and
• Operation of a motor vehicle with a blood alcohol concentration exceeding 80mg in 100mL of blood, in relation to counts 7, 8 and 9 of the indictment.
[199] While some of those findings of guilt may be duplicative, warranting the eventual application of principles emphasized by the Supreme Court of Canada in R. v. Kienapple, supra, in my view, and contrary to the submissions of defence counsel, such considerations are brought to bear after findings of guilt and before the entering of convictions, and not at this stage of the overall analysis required in relation to these proceedings.
[200] Whether or not there should be findings of guilt in relation to the more serious charges set forth in the indictment, (and not just the aforesaid lesser and included offences), depends on whether the Crown also has proved, beyond a reasonable doubt, that Mr Ranger’s conduct:
• “thereby [caused] bodily harm to another person”, (in relation to his impaired operation of a motor vehicle and his dangerous operation of a motor vehicle); and
• “[caused] an accident resulting in bodily harm to another person”, (in relation to his operation of a motor vehicle with a blood alcohol concentration exceeding 80mg in 100mL of blood).
GENERAL PRINCIPLES
[201] While I received no law from counsel as to the general principles applicable to such causation determinations, I believe they include the following:
• To prove the element of causation beyond a reasonable doubt in this context, the Crown is only required to establish that the conduct of the accused was at least a contributing cause outside the de minimus range. See R. v. Smithers, 1977 CanLII 7 (SCC), [1978] 1 S.C.R. 506, at p.519.
• While the causation standard expressed in R. v. Smithers remains valid, the Supreme Court of Canada subsequently adopted the phrase “significant contributing cause” as an alternative description of the standard. That new phrase was held to have the same meaning as the previous phrases “contributing cause outside the de minimus range” and “cause that is not insignificant”. The alternative wording was approved not to amend the relevant causation standard, but to avoid using negative phrases and Latin terms which were viewed as generally unhelpful, particular in relation to jury trials. See R. v. Nette, 2001 SCC 78, [2001] 3 S.C.R. 488, at paragraph 71.
• Although the Smithers and Nette cases dealt with the appropriate standard of causation for murder or manslaughter, the same standard has been applied in the context of driving offences, (such as impaired driving and dangerous driving), causing bodily harm or death. See, for example: R. v. Larocque (1988) 5 M.V.R. (2d) 221 (Ont.C.A.); R. v. Stephens, [1991] O.J. No. 85 (C.A.); and R. v. Kippax, 2011 ONCA 766, [2011] O.J. No. 5494 (C.A.).
• When applying the Smithers standard of causation, it is immaterial that an event was in part caused by another factor to which the accused may or may not have contributed. Even if the unlawful act alone would not have caused the event, it is still a legal cause so long as it contributed in some way to that result. In the absence of statutory language to the contrary, the “cause” of an event need not be the “sole” or “substantial” cause of that event. See R. v. Smithers, supra, at pp.521-522, and R. v. Pinske (1988), 1988 CanLII 3118 (BC CA), 30 B.C.L.R. (2d) 114 (C.A.), affirmed 1989 CanLII 47 (SCC), [1989] 2 S.C.R. 979.
• Moreover, a trier of fact is entitled to consider all of the evidence, (including testimony of both expert and lay witnesses), and apply common sense in making a determination on the issue of causation. See R. v. Smithers, supra, at pp.515-516.
[202] With the above principles in mind, I turn to the causation issues in this case.
[203] In that regard, the submissions of counsel seemed focused entirely on whether the conduct of Mr Ranger caused the first collision between the Ranger and Medeiros vehicles.
[204] In particular, all concerned seemed to accept or not dispute:
• that the second collision between the McCarthy and Medeiros vehicles was caused by the first collision;
• that each of Mr Medeiros and Ms Pimental sustained bodily harm that was caused by two collisions; and
• that Mr McCarthy sustained bodily harm that was caused by the second collision, (which, again, was caused by the first collision).
[205] I nevertheless think it advisable to address these additional causation issues expressly, if only to confirm my independent view that they have been proven beyond a reasonable doubt by the evidence.
CAUSE OF SECOND COLLISION
[206] In my view, the first collision between the Ranger and Medeiros vehicles clearly was a “significant contributing cause”, (or a “contributing cause outside the de minimus range”), of the second collision between the McCarthy and Medeiros vehicles. In particular:
• As noted above, Mr Medeiros was sober at the time of the first and second collision, and I think it clear from the very extensive front end damage to the Medeiros vehicle obviously caused by the initial head on collision, as well as the resultant vehicle dynamics, that Mr Medeiros effectively had no control over the movement or location of his vehicle at the time of the second collision.
• As noted above, Mr McCarthy was also sober, and following the Medeiros vehicle at a distance of three to four car lengths, while both were travelling at the posted speed limit of 80 km per hour. In my view, that almost certainly would have allowed Mr McCarthy sufficient time to react, brake, turn or otherwise take measures sufficient to avoid any collision with the Medeiros vehicle, had it slowed or turned in any normal way.
• However, the first collision forced the Medeiros vehicle to move in a completely sudden, unexpected and abnormal way, with its forward progress being immediately and completely arrested as it was then pushed backwards and spun counter-clockwise, thereby suddenly and completely blocking the entire westbound lane in which Mr McCarthy was travelling.
• Mr McCarthy was not an inattentive driver. He noted and reacted to the situation immediately, and the tire marks left on the road by his vehicle confirmed that he forcefully applied his brakes. However, given the movements of the Medeiros vehicle, its resulting location in the westbound lane of the highway, and the posted speed at which Mr McCarthy had been travelling, there was simply no time for him to steer clear of a collision, or bring his vehicle to a complete stop before a collision with the Medeiros vehicle.
• In the circumstances, I accept Mr McCarthy’s testimony that, when confronted with the immediate effects of the first collision, there really was no way he could have avoided the second collision.
[207] In my opinion, for all these reasons, the second collision therefore followed inevitably from the first. The first collision “caused” the second collision in the sense required.
EXISTENCE AND CAUSE OF BODILY HARM
[208] As for “bodily harm”, the term is defined in section 2 of the Criminal Code as meaning “any hurt or injury to a person that interferes with the health or comfort of the person, and that is more than merely transient or trifling in nature”.
[209] In this case, I was presented with considerable unchallenged evidence, (through the agreed statement of facts, witness testimony, and photograph exhibits), of “hurt or injury” sustained by Mr Medeiros, Ms Pimental and Mr McCarthy.
[210] In relation to Mr Medeiros:
• The agreed statement of facts includes an indication that he “suffered life threatening injuries with a broken sternum, [and a] left leg nearly severed below the knee”, and that he “was paralysed as a result of his injuries”.
• A number of witnesses gave evidence concerning their observations of Mr Medeiros and his physical distress immediately after the accident. These included Mr McCarthy, (who saw Mr Medeiros pinned behind the steering wheel of his vehicle, struggling to get free), and Constable Reintjes, who provided a detailed description of the obvious injuries and distress experienced by Mr Medeiros. These included a massive leg injury, (wherein an almost severed leg was held on by tissue and skin), severe bleeding from a femoral artery, and chest pains.
• In the course of his testimony, Mr Medeiros confirmed that he had been wearing his seatbelt at the time of the accident. However, he also indicated that he was in the hospital for a year following the accident, and that he spent the first six weeks of that year in a coma. He described additional injuries to his chest, (which was said to be broken), his ribs, (broken on both sides), his left arm, (which was paralysed), his right leg, (which had been “cracked”), and his left leg, (the tendons of which had been severed, such that it was “just hanging”, “as if it was dead”). When asked to describe his condition at the time of trial, Mr Medeiros testified that he had “recovered some”, but had to “recover more”. His back was still hurting a lot, his left arm still did not move, and he could not walk very much because his left leg “didn’t help” him. (Mr Medeiros was obliged to attend in court using a motor-powered assist chair.) He confirmed that, before the accident, he had none of these various injuries and had not required use of the motor-powered assist chair. He said he would like to return to working as a sewers and water main laborer, (although he had been laid off for a number of months at the time of the accident), but his injuries were preventing him from doing so, and he had not had any employment since the collision.
[211] In relation to Ms Pimental:
• The agreed statement of facts includes an indication that she “suffered a broken leg, broken left arm and a severe laceration to her scalp”.
• A number of witnesses gave evidence concerning their observations of Ms Pimental and her physical distress immediately after the accident. These included Mr McCarthy, who saw that she was pinned on the floor of the Medeiros vehicle between the passenger seat and motor housing, still wearing her seat belt. Constable Reintjes was more descriptive, noting that Ms Pimental obviously had been “launched backwards” despite the wearing of her seatbelt, between the vehicle’s seats and into its rear area. A large laceration right across the top of her head had completely opened her scalp, which was bleeding profusely. She also had an open and obvious fracture to her lower left leg, and she was not breathing.
• In the course of her testimony, Ms Pimental confirmed that she had been wearing her seatbelt at the time of the collision. However, when describing the accident and its immediate aftermath, Ms Pimental testified that she nevertheless “cracked” her head, (causing a severe laceration to the left side of her scalp), broke her left arm, (in the area of her wrist), and broke her left leg, (in the area of her left shin and foot). Photographs depicting these injuries, (and obvious medical treatment in the form of significant stitching of her scalp laceration, and extensive splints, casts and bandaging), as well as additional contusions to Ms Pimental’s right shoulder area from her seat belt strap, also were filed as exhibits. Ms Pimental’s testimony included indications that, at the time of trial, her left wrist was still “bad”, and that the laceration to her scalp was still “not very correct”, such that it was going to be “fixed again”.
[212] In relation to Mr McCarthy:
• The agreed statement of facts includes an indication that he “suffered an abrasion to his right hand and whiplash”.
• In her testimony, Mrs McCarthy confirmed that her husband was taken to hospital by ambulance, after the accident.
• When asked at trial if he sustained any injuries as a result of the second collision, Mr McCarthy testified that he had a few herniated discs in his neck, and swelling in his right arm, wrist and hand caused by deployment of the airbags in his vehicle. (This was supported by a photograph exhibit showing contusions to Mr McCarthy’s right hand.) Mr McCarthy said that, at the time of the accident, his arm felt like it was broken. Mr McCarthy said that, although he sought treatment after the accident that included physiotherapy for his neck and arm, not much could be done for him. At the time of trial, he was still experiencing numbness in his arm and his hand still did not “work the same way” as it did before the accident.
[213] In my view, the aforesaid physical pain and damage experienced by each of Mr Medeiros, Ms Pimental and Mr McCarthy clearly meets the Criminal Code’s section 2 definition of “bodily harm”, insofar as each of those three individuals sustained “hurt or injury … that [interfered] with [their respective] health or comfort”, and which was “more than merely transient or trifling in nature”.
[214] There was no evidence or suggestion that any of the aforesaid “hurt or injury” sustained by these three individuals was present before the collisions they experienced, and it was clear to me that the witnesses were attributing the various hurts and injuries to what was experienced by Mr Medeiros, Ms Pimental and Mr McCarthy during the collisions.
[215] In the result, I find:
• that the first collision, and the second collision caused by the first, were a “contributing cause outside the de minimus range”, or a “significant contributing cause”, of “bodily harm” experienced by Mr Medeiros;
• that the first collision, and the second collision caused by the first, were a “contributing cause outside the de minimus range”, or a “significant contributing cause”, of “bodily harm” experienced by Ms Pimental; and
• that the second collision, caused by the first, was a “contributing cause outside the de minimus range”, or a “significant contributing cause”, of “bodily harm” experienced by Mr McCarthy.
CAUSE OF INITIAL COLLISION
[216] I turn then to the remaining causation issues, which relate to whether Mr Ranger’s impaired driving, dangerous driving, and/or excessive blood alcohol concentration while driving, “caused” the first collision, in the sense required.
[217] Based on the evidence set forth above, in my view, there is really nothing to suggest that the first collision was caused by any weather, road surface, lighting or visibility conditions on the relevant section of Highway 2 at the time.
[218] It was still daylight, the weather was clear, and the road conditions were not only safe but “ideal”. The road markings, and particularly those dividing the portions of the highway intended for eastbound and westbound traffic, were there and visible for all to see.
[219] There also is no evidence whatsoever of any obstructions on the travelled portions of the highway, apart from those created by the vehicles being operated there.
[220] There is, moreover, no evidence whatsoever of any relevant mechanical defect or failure prior to the first collision.
[221] In my view, the first collision between the Ranger and Medeiros vehicles was brought about by human failings, and in particular, by the conduct and condition of Mr Ranger.
[222] Had Mr Ranger not been driving erratically immediately before the collision, (e.g., by speeding, by ignoring or disregarding clearly visible lane designations and control markings on the highway, and by failing to keep his vehicle in a proper lane at all times), he would not have placed his vehicle in the path of the Medeiros vehicle at a high rate of speed; something which not only put the two vehicles on a collision course but also inherently reduced the opportunity for evasive action on the part of either driver once the danger of a collision had been recognized. In other words, the manner in which Mr Ranger drove was a cause of the accident.
[223] Had Mr Ranger not been driving with a blood alcohol concentration well in excess of the legal limit, he would not have been substantially impaired, and that substantial impairment inherently compromised and reduced his ability to recognize the hazards created by his dangerous driving and take corrective action, including timely evasive action that might have prevented the first collision. In other words, Mr Ranger’s excessive blood alcohol content, and resulting impairment of Mr Ranger’s ability to drive, also were a cause of the accident.
[224] In the result, I find the following:
• First, that Mr Ranger’s operation of a motor vehicle while impaired was a “contributing cause outside the de minimus range” or a “significant contributing cause” of the first collision. Combined with the other causation conclusions set forth above, Mr Ranger’s impaired operation of a motor vehicle therefore caused bodily harm to each of Mr Medeiros, Ms Pimental and Mr McCarthy in the sense required. In other words, the Crown has proved, beyond a reasonable doubt, the final essential element of the charges in counts 1, 2 and 3 of the indictment.
• Second, that Mr Ranger’s dangerous operation of a motor vehicle was a “contributing cause outside the de minimus range” or a “significant contributing cause” of the first collision. Combined with the other causation conclusions set forth above, Mr Ranger’s dangerous operation of a motor vehicle therefore caused bodily harm to each of Mr Medeiros, Ms Pimental and Mr McCarthy in the sense required. In other words, the Crown has proved, beyond a reasonable doubt, the final essential element of the charges in counts 4, 5 and 6 of the indictment.
• Third, that Mr Ranger’s operation of a motor vehicle, having consumed alcohol such that his blood alcohol concentration exceeded 80mg in 100mL of blood was a “contributing cause outside the de minimus range” or a “significant contributing cause” of the first collision. Combined with the other causation conclusions set forth above, Mr Ranger’s operation of a motor vehicle with an excessive blood alcohol concentration therefore caused bodily harm to each of Mr Medeiros, Ms Pimental and Mr McCarthy in the sense required. In other words, the Crown has proved, beyond a reasonable doubt, the final essential element of the charges in counts 7, 8 and 9 the indictment.
Conviction
[225] Stand up please Mr Ranger.
[226] For the reasons set out above, I find you guilty of all counts set forth on the indictment.
[227] Despite that formal finding, the entering of formal convictions shall be delayed, at the request of counsel for both parties, pending further submissions in relation to the application of the principles emphasized by the Supreme Court of Canada in R. v. Kienapple, supra.
[228] For now, the matter is adjourned to the next assignment court for the setting of a date for further submissions in that regard, and in relation to sentencing.
“Justice I. F. Leach”
JUSTICE I. F. LEACH
Released: (Orally) March 13, 2015
CITATION: R. v. ANDREW IAN RANGER, 2015 ONSC 1158
COURT FILE NO.: 11167
DATE: 2015/03/13
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
- and -
Andrew Ian Ranger
REASONS FOR JUDGMENT
Justice I. F. Leach
Released: (Orally) March 13, 2015