R. v. Holmes, 2016 ONSC 1884

COURT FILE NO.: CR26-13

DATE: 2016/03/16

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

JAMES GREGORY HOLMES

Counsel:

C. McMorrow, for the Crown

E. Lainevool for the Accused

HEARD: January 18, 19 and 20, 2016

Before: Valin J.

[1] In the early morning of January 7, 2012, Jessie McLaughlin was operating a snowmobile on Brule Road in the Township of Calvin. A truck operated by the accused, James Gregory Holmes, struck his snowmobile. Mr. McLaughlin died from injuries he suffered in that collision.

[2] Mr. Holmes is charged with dangerous operation of a motor vehicle causing death. The formal charge reads:

That he on or about the 7^th day of January, 2012 at the Township of Calvin, … did operate a motor vehicle on Brule Road, … , in a manner that was dangerous to the public and thereby caused the death of Jessie McLaughlin, contrary to Section 249(4) of the Criminal Code of Canada.

Background

[3] Four witnesses testified during the trial: Ontario Provincial Police Constable Kelly Pawson, Zachary Frizzell, Matthew Normand, and Mr. Holmes. I derive the following facts from the undisputed portions of their testimony.

[4] Mr. McLaughlin had recently acquired a camp located on a farm at 743 Brule Road. On the evening of January 6, 2012, he invited his girlfriend, his friend Matthew Normand, his friend Zachary Frizzell and his girlfriend, and his cousin Mr. Holmes and his girlfriend, to the camp for a social evening.

[5] Mr. Frizzell and his girlfriend arrived at the camp sometime between 7:00 and 9:00 PM. Mr. Normand arrived around dinnertime. Mr. Holmes and his girlfriend arrived sometime between 10:30 and 11:00 PM. The group socialized, played cards, and drank beer.

[6] At one point in the evening, the four young men went outside to ride a snowmobile and an ATV in neighbouring fields. They returned to the camp within an hour.

[7] Mr. Holmes had traveled to the camp that evening in a truck owned by his employer, Superior Safety. That vehicle had an instrument with a screen, called a programmer, which measured fuel consumption. It also measured such things as the time it took for the truck to accelerate from a stopped position to 60 miles per hour, and the time it took to travel one quarter of a mile from a stopped position. Mr. Normand had expressed interest in how the programmer worked.

[8] Shortly after returning to the camp from the fields, Mr. Holmes took Mr. Normand for a ride in his truck. Brule Road runs in a north south direction between Peddler’s Road to the north and McLaughlin Road to the south. Upon leaving the driveway from Mr. McLaughlin’s camp, Mr. Holmes turned left on Brule Road and travelled along that road in a northerly direction.

[9] At a point somewhere south of the intersection of Brule Road with Adams Road, Mr. Holmes decided to turn the truck around. The road had been plowed wider than the travelled surface, with the result that there was loose snow on the side of the road covering the edge of the ditches on both sides.

[10] As Mr. Holmes executed his turn, the front wheels of the truck became stuck in the ditch. Mr. Holmes called his uncle, who came with a vehicle and a chain, and towed the truck out of the ditch. Mr. Holmes then began to travel south on Brule Road with the intention of returning to the camp.

[11] Meanwhile, back at the camp, Mr. McLaughlin noticed that Mr. Holmes and Mr. Normand had been gone for a while. He decided to go out to look for them. He told Mr. Frizzell to come and look for him if he was not back in 15 minutes. Mr. McLaughlin left the camp on his snowmobile and turned left onto Brule Road to travel in a northerly direction.

[12] When Mr. McLaughlin did not return within the appointed time, Mr. Frizzell left the camp in search of him on an ATV. He also traveled in a northerly direction on Brule Road.

[13] Mr. Frizzell found Mr. McLaughlin on his snowmobile talking to Mr. Holmes in his truck. They were on Brule Road. Eventually, the three men stationed their vehicles on the road, parallel to each other, and facing south towards the camp. Mr. Holmes’ vehicle was on the right. Mr. Frizzell was on the ATV in the middle. Mr. McLaughlin was on the left on his snowmobile.

[14] What followed was the beginning of a virtual and, for some, a permanent nightmare. Mr. Holmes asked, “Hey, do you want to race?” There was no discussion about where the race would end. The evidence is not clear as to whether Mr. Holmes gave a verbal or a hand signal to start the race or if Mr. McLaughlin began accelerating his snowmobile in an immediate response to Mr. Holmes’ invitation to race.

[15] The evidence is also not clear about the exact location on Brule Road where the three vehicles were lined up before the race began. During his testimony in chief, Mr. Frizzell estimated the location where the three vehicles met up was about midway between the intersection of Brule Road with Galston Road to the north and Adams Road to the south. On cross-examination, he admitted that the location might have been south of Adams Road.

[16] Mr. Normand, a passenger in the truck driven by Mr. Holmes, testified during cross-examination that, when the race commenced, the three vehicles were lined up on Brule Road at a point he marked with a red X on Exhibit 2. That point appears to be approximately half way between Adams Road and McLaughlin Road.

[17] Mr. Holmes testified that the point from which the three vehicles took off was on a flat stretch of Brule Road, which he described as “the swamp”. There was no evidence at trial as to the distance between the point where the race started and the driveway to the camp.

[18] From the outset, Mr. McLaughlin’s snowmobile accelerated quickly into a significant lead of approximately 200 metres. When Mr. Holmes accelerated the truck, the wheels began to spin. He had to back off on the accelerator, and then accelerate slowly, in order to gain traction on the road. Mr. Frizzell had even more difficulty gaining traction on the ATV he was operating.

[19] Trial Exhibit 3 is a large panoramic photograph of the accident scene on Brule Road. The photograph is taken from the north, looking in a southerly direction. The condition of the road is clearly depicted in that photograph. It was hard packed snow with a light accumulation of fresh snow.

[20] At the end of the flat stretch of road, there is a slight hill. From the perspective of the three vehicles, the driveway to Mr. McLaughlin’s camp is located near the crest of the hill on the west side of the road.

[21] As Mr. Holmes’ vehicle began to ascend the hill, he saw with surprise Mr. McLaughlin seated on his snowmobile in the centre of the road looking back. There may have been one or possibly as many as three dogs on the road.

[22] Mr. Holmes swerved his truck to the left in an attempt to avoid colliding with the snowmobile. Sadly, his evasive manoeuvre failed. The front right section of his truck collided with the rear of the snowmobile.

[23] As soon as the truck came to a full stop, Mr. Holmes and Mr. Normand ran back to render assistance to Mr. McLaughlin who clearly had been injured in the collision. Mr. McLaughlin appeared to be having trouble breathing on his own. Mr. Holmes, who at the time was a volunteer firefighter with first aid training, began to administer CPR to Mr. McLaughlin to assist with his breathing. Mr. Normand called 911.

[24] Mr. Frizzell, who had experienced difficulty keeping up to either of the two other vehicles, arrived on the scene. He walked through the ditch on the west side of the road over to the snowmobile, which ended up against a fence, to attempt to turn it off. He was unable to accomplish that task. Mr. Normand walked over and turned off the ignition. The path through the snow made by their footprints is clearly visible in the panoramic photograph filed as Exhibit 3.

[25] Mr. Frizzell then decided to move the truck, which had ended up off the road on the east side. He testified that he was able to rock the truck out of the ditch. He then drove it to the camp and advised the young women that there had been an accident. One of the young women then drove the truck to a driveway on McLaughlin Road.

[26] Constable Pawson received a call from dispatch about the accident at 12:47 AM on January 7, 2012. He arrived at the accident scene at 1:20 AM. He testified that there is no posted speed limit on Brule Road and that the speed limit on roads in Calvin Township, if not posted, is 80 kilometres per hour.

[27] When Constable Pawson arrived on the scene, the Calvin Township Fire Department was on site with a number of emergency response vehicles. Paramedics were loading Mr. McLaughlin into an ambulance. Constable Pawson was troubled by what he did not see. Other than the snowmobile, no other vehicle at the scene appeared to have been in an accident. The snowmobile was located about 150 to 200 metres from the driveway leading to Mr. McLaughlin’s camp. It had sustained substantial damage.

[28] Constable Pawson went to the camp and spoke to Mr. Frizzell, Mr. Normand, and the young women. All occupants of the camp, including Mr. Frizzell and Mr. Normand, claimed not to have seen the accident occur. Constable Pawson returned to the accident scene still troubled about the absence of a second vehicle, and began to think an ATV had been involved.

[29] Constable Pawson’s supervisor, Sergeant Ward, arrived on the scene at 2:15 AM. The two officers returned to the camp at 2:25 AM to speak to the occupants. They saw four ATVs in the barn. None had any apparent collision damage. Constable Pawson interviewed Mr. Frizzell again, but Mr. Frizzell remained adamant he had not been involved in the accident.

[30] The two officers returned to the accident scene at 2:40 AM. At that time, Mr. Holmes was seated in a fire emergency vehicle. Constable Pawson invited Mr. Holmes to come with him to a police cruiser. The officer detected a very faint odour of an alcoholic beverage on Mr. Holmes’ breath. He did not observe any other physical indications of impairment.

[31] Constable Pawson began to take a written statement from Mr. Holmes at 3:03 AM. Dr. John Seguin pronounced Mr. McLaughlin dead at the Mattawa General Hospital at 3:33 AM. At about 4:00 AM, Constable Pawson informed Mr. Holmes that Mr. McLaughlin had passed away. Mr. Holmes bolted from the police vehicle in a very emotionally distressed condition. Constable Pawson turned Mr. Holmes over to his father who had arrived at the scene. The written statement was not completed.

[32] Constable Pawson took a video-recorded statement from Mr. Holmes early in the evening of January 8, 2012. Before commencing, he read to Mr. Holmes the standard caution and his right to counsel. Mr. Holmes indicated he understood his rights, that he did not wish to have a lawyer with him, and that he consented to speaking with Constable Pawson.

[33] Following a voir dire undertaken at the commencement of the trial, I ruled that both the written statement and the video-recorded statement were voluntary and admissible at trial for the purpose of cross-examination of Mr. Holmes in the event that he testified.

[34] At 4:15 AM, Constable Pawson located Mr. Holmes’ truck at 160 McLaughlin Road, a distance of 1.1 kilometres from the accident scene. He observed extensive collision damage to the front right corner of the vehicle. There was damage along the front right side above the wheel well, and across the front for about 18 to 24 inches from the top of the hood to the bumper. The damage to the vehicle is clearly depicted in three photographs filed as Exhibits 5 A, B, and C.

[35] At the conclusion of his investigation, Constable Pawson charged Mr. Frizzell with three offences under the Highway Traffic Act: stunt racing; driving without a licence; and obstruct police. The first two charges arose from Mr. Frizzell’s participation in a race on Brule Road when he was unlicensed, and the third charge related to the removal of Mr. Holmes’ truck from the accident scene. Mr. Frizzell pleaded guilty to all three counts.

[36] The police seized Mr. Holmes’ truck pursuant to a search warrant. Constable Pawson testified that he was unable to say what information was contained in the report of the analysis of the computerized system in the truck because he had not read the report. However, he did state that the search of the computerized system in the vehicle did not assist in the investigation.

[37] Mr. Holmes played no role in the removal of his truck from the scene of the accident, or from the driveway at the camp to the location where the police found it on McLaughlin Road.

[38] Calvin Township is a sparsely populated rural municipality. Brule Road is a very remote road in that municipality. There are very few residences in the immediate area. With the exception of Mr. Holmes’ uncle’s vehicle, which had assisted in pulling Mr. Holmes’ truck from the ditch, and the police and emergency response vehicles that attended the accident scene, none of the witnesses who testified at trial saw any other vehicles on Brule Road late in the evening of January 6 or early in the morning of January 7, 2012.

The Law

[39] A person accused of a criminal offence is presumed to be innocent, unless and until the Crown has proven his guilt beyond a reasonable doubt. That presumption continues throughout the trial and is only defeated if and when the Crown has satisfied the court beyond a reasonable doubt that the accused is guilty of the offence charged.

[40] During his trial, Mr. Holmes was not obligated to present evidence or to prove that he is innocent of the offence charged. From the beginning of the trial to the end, the onus was on the Crown to prove his guilt beyond a reasonable doubt.

[41] A reasonable doubt is a doubt based on reason and common sense. It is a doubt that logically arises from the evidence, or the lack of evidence. It is not enough for the court to believe that the accused is probably or likely guilty. Proof of probable or likely guilt is not proof of guilt beyond a reasonable doubt.

[42] S. 249 (1) (a) of the Criminal Code of Canada provides:

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…

[43] S. 249 (4) of the Criminal Code provides:

Every one who commits an offence under subsection (1) and thereby causes the death of any other person is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.

[44] Every criminal offence has two essential elements. The first is the prohibited act or omission called the actus reus. The prohibited act depends on how Parliament has worded the offence and how the courts interpret those words.

[45] The second is the mental element known as the mens rea. Sometimes, the mental element is mentioned in the wording of the offence by words such as “intentionally”, “knowingly”, “negligently”, or “recklessly”. When such words are lacking, the courts have to infer what type of mental element is required. In those circumstances the courts often make a distinction between subjective and objective fault. A subjective mental element depends what was in the accused’s mind at the time the offence was committed. On the other hand, an objective mental element does not depend on the accused’s state of mind, but rather on what a reasonable person would have done or known in similar circumstances.

[46] In order to find Mr. Holmes guilty of the offence of dangerous operation of a motor vehicle causing death, the Crown must prove each of these essential elements beyond a reasonable doubt;

i. that Mr. Holmes operated a motor vehicle;

ii. that he operated a motor vehicle in a manner that was dangerous to the public; and

iii. that his operation of the motor vehicle caused Mr. McLaughlin’s death.

[47] In R, v, Beatty[^1], Charron J., speaking for the majority of the Supreme Court of Canada, held that the actus reus of the offence of dangerous driving is defined in s. 249 of the Criminal Code as “driving 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.” The actus reus does not require the further element that the conduct of the accused be a marked departure from the normal manner of driving.

[48] Charron J. emphasized that it is the manner in which the motor vehicle was operated that is at issue, not the consequences of the driving. The consequence, as in this case, where death was caused, may make the offence a more serious one, but it has no bearing on the question of whether the offence of dangerous driving has been made out.[^2]

[49] Charron J. further held that the presence of objective mens rea for the offence of dangerous driving is determined by considering all the evidence, including the accused’s actual state of mind, if any, in assessing whether the dangerous conduct constitutes a marked departure from the standard expected of a reasonably prudent driver in the same circumstances.[^3]

[50] Although it is not necessary for the Crown to prove the accused had a subjective state of mind such as intent or recklessness, such evidence when present is relevant. For example, an accused who creates a danger for other users of the road by intentionally swerving his vehicle into the oncoming lane, to show off or scare others, would be engaging in conduct that is a marked departure from that expected of a reasonably prudent driver.[^4]

[51] In R. v. Roy[^5], the Supreme Court of Canada unanimously approved and applied the principles from its decision in Beatty. Cromwell J. further stated:

A fundamental point in Beatty is that dangerous driving is a serious criminal offence. It is, therefore, critically important to ensure that the fault requirement for dangerous driving has been established. Failing to do so unduly extends the reach of the criminal law and wrongly brands as criminals those who are not morally blameworthy. The distinction between a mere departure, which may support civil liability, and the marked departure requirement for criminal fault is a matter of degree. The trier of fact must identify how and in what way the departure from the standard goes markedly beyond mere carelessness.

Analysis

[52] During his testimony, Mr. Holmes admitted he was driving his truck when it struck the snowmobile operated by Mr. McLaughlin on Brule Road.

[53] The autopsy report of Dr. A. Steele dated January 30, 2012, filed as Exhibit 1, attributes Mr. McLaughlin’s immediate cause of death to multiple trauma of a motor vehicle accident, and the mechanism of death to cranio-cerebral injury, a spinal fracture, neurologic dysfunction, neurologic pulmonary edema, and blood loss.

[54] I am therefore satisfied beyond a reasonable doubt that, on January 7, 2012, Mr. Holmes operated a motor vehicle on Brule Road in Calvin Township, and that his operation of that motor vehicle caused the death of Mr. McLaughlin.

[55] The single issue in this case is whether the Crown has proved beyond a reasonable doubt that Mr. Holmes operated his truck in a manner that was dangerous to the public.

[56] With respect to that issue, the crucial point in the evidence is what occurred from the time the three vehicles lined up parallel to each other facing south on Brule Road until the collision that occurred near Mr. McLaughlin’s camp.

The Evidence of Constable Kelly Pawson

[57] Constable Pawson testified that, when he first attended at the small farmhouse at 743 Brule Road at 1:45 AM, he spoke to Mr. Frizzell and Mr. Normand. He described both men as being evasive with their answers and not wanting to tell him what had happened. He noticed that both young men had been drinking, but he would not describe either of them as being drunk.

[58] Constable Pawson testified that Mr. Frizzell told him he was in the area on an ATV, but he did not see the accident happen. Mr. Normand told the officer he had not seen the accident, that he had been at the farmhouse, heard the accident, and went outside to see what had happened.

[59] Constable Pawson returned to the accident scene. He noticed a large disturbance in the snow in the ditch on the east side of the road, opposite to the seat of the snowmobile, which was lying beside the west edge of the travelled portion of the road. There were no vehicle tracks leading to or from that area. He could not figure out what had created that disturbance in the snow.

[60] Following Constable Pawson’s investigation at the scene and his second visit to the camp, Mr. Normand told him that the speed of Mr. Holmes’ truck just prior to the collision was about 50 kilometres per hour. Mr. Holmes told Constable Pawson that he estimated the speed to have been 50 to 60 kilometres per hour. Constable Pawson testified during cross-examination that, given what he had observed at the accident scene, he accepted that evidence because he had no reason to believe otherwise.

[61] Constable Pawson testified that, during his dealings with Mr. Holmes, first in taking a written statement, and later when taking the video-recorded statement, he found Mr. Holmes was doing his best to be truthful and to give accurate information.

The Evidence of Zachary Frizzell

[62] Mr. Frizzell testified that he and his girlfriend arrived at Mr. McLaughlin’s camp on January 6^th between 7:00 and 9:00 PM. He could not recall when Mr. Holmes and his girlfriend arrived. The friends assembled were drinking beer. When asked about the state of his sobriety, he stated that he was clear headed, but that he had consumed “enough to drink”.

[63] Mr. Frizzell recalled the three vehicles being lined up on the road facing the direction of Mr. McLaughlin’s camp with the ATV he was riding in the centre, Mr. Holmes in his truck to the right, and Mr. McLaughlin on his snowmobile to the left. When Mr. Holmes suggested a race, there was no mention of a finish line. Mr. Frizzell stated that his best guess would have been the camp. There was no traffic on the road.

[64] He could not recall how the beginning of the race was signalled. He stated that the race just happened after Mr. Holmes suggested it. Mr. Frizzell stated that Mr. McLaughlin got away from the start quickly, followed by Mr. Holmes, whose truck gained more traction than the ATV. Mr. Frizzell had difficulty keeping up. The ATV he was operating was in two wheel drive and the wheels spun every time he attempted to accelerate.

[65] As he travelled along Brule Road, Mr. Frizzell could not see very much other than the taillights of Mr. Holmes’ truck. He could not see Mr. McLaughlin’s snowmobile. It was dark and hard to see because of the snow dust from the vehicles in front of him. He testified that the snow dust made it very hard to see.

[66] As he continued south, he noticed the truck lights go into the left lane. That happened very quickly. Mr. Frizzell came upon the accident scene. There was debris on the road. Mr. Holmes and Mr. Normand were out of the truck yelling Mr. McLaughlin’s name. The truck was in the ditch on the east side of the road near the crest of the hill. Mr. Frizzell identified the location of the truck on Exhibit 3 with a large red circle.

[67] Mr. Frizzell testified that he helped Mr. Holmes and Mr. Normand lift Mr. McLaughlin’s body from the ditch up onto the side of the road. He did not say which ditch or which side of the road.

[68] The snowmobile was still running. After he failed in his attempt to turn it off and Mr. Normand came to assist with that task, Mr. Frizzell returned to the road. After stating that he was anxious to help, Mr. Frizzell got into Mr. Holmes’ truck and managed to get it out of the ditch by rocking it back and forth.

[69] Mr. Frizzell drove the truck back to the camp and pulled into the driveway. He jumped out of the truck and told the girls to call for help. He returned briefly to the accident scene. The ATV he had been riding was still there with the lights on so that Mr. Holmes and Mr. Normand could see while rendering assistance to Mr. McLaughlin. Mr. Frizzell then returned to the camp where he remained until the police arrived.

[70] Mr. Frizzell admitted that he was quite frantic and not very cooperative with the police. In his view, the police were somewhat hostile towards the occupants of the camp. During cross-examination, Mr. Frizzell admitted he did not give an accurate statement to the police until eight days following the accident.

The Evidence of Matthew Normand

[71] Mr. Normand testified that he arrived at Mr. McLaughlin’s camp around dinnertime on January 6^th. The friends assembled there were drinking beer, playing cards, and socializing. He could not recall how much he drank that evening, but, in his words, he “had enough to be buzzed.”

[72] He testified that he went for a ride with Mr. Holmes in his truck to check out the programmer, a device he described as enhancing a vehicle’s performance and providing more horsepower to the engine. He stated that the programmer had a setting on it for racing.

[73] Mr. Normand recalled Mr. Holmes trying to turn the truck around in the middle of the road and that the front wheels slipped into the ditch. He stated that Mr. Holmes called his uncle to come to pull them out of the ditch. When asked about traffic on Brule Road, his response was, “None.”

[74] According to his testimony, after Mr. McLaughlin and Mr. Frizzell showed up, the three vehicles proceeded up the road a bit to the point where they decided to race. He marked the spot on Brule Road where the race commenced with a red X on the Google map marked as Exhibit 2.

[75] Mr. Normand did not recall how the decision to race was reached other than what he described as a consensus. He was seated in the passenger seat of the truck. He stated that the finish line was back at the camp. According to his testimony, the race began when someone yelled, “Go,” but he could not recall who yelled that.

[76] He testified that, at the start of the race, the snowmobile took off in front of the truck and the ATV fell behind. In the initial stage of the race, the snowmobile was maybe 200 metres in front. Mr. Normand could see its taillights and most of the snowmobile with Mr. McLaughlin on it.

[77] The Crown asked Mr. Normand what speed he estimated the truck reached during the course of the race. His response was, “I don’t approximately know… I would say at least 80 kilometres an hour… Just approximate. I don’t actually know.” The Crown reminded Mr. Normand that, when he spoke to the police after the accident, he had estimated the speed at 50 kilometres per hour. When asked to explain that discrepancy, he stated, “I believe as we slowed down, we swerved, and that is why I thought we were probably going slower.”

[78] When asked by the Crown what role the programmer had played in the race, Mr. Normand stated, “Just basically it records quarter mile times.”

[79] Mr. Normand testified that he saw something on the road that he believed was a dog. He stated that he believed Mr. Holmes must have seen it too, because he swerved to the left side of the road and he would not have done that for nothing. In the course of swerving, Mr. Holmes lost control of the truck and collided with the snowmobile.

[80] Mr. Normand testified that it was slippery out and that, when Mr. Holmes swerved, the snowmobile was 200 to 300 metres ahead of them. Mr. McLaughlin was on his snowmobile on the left side of the road looking back at the truck. When Mr. Holmes lost control of the truck, it travelled off the road into the ditch on the east side and then out of the ditch on to the crest of the hill. Mr. McLaughlin tried to advance, but there was not enough time to get out of the way before the collision occurred.

[81] Mr. Normand stated that the truck came to a stop close to the crest of the hill, past the red circle marked on Exhibit 3 by Mr. Frizzell. He testified that the collision took place in the ditch on the east side of the road close to where the yellow marker appears in Exhibit 3.

[82] Mr. Normand stated that, after the truck came to a stop, he and Mr. Holmes went to look for Mr. McLaughlin. According to his testimony, they found him in the ditch on the east side of the road at the point he marked with a pink X on Exhibit 3. Mr. Holmes immediately began to administer CPR to Mr. McLaughlin.

[83] When asked by the Crown what interaction he had with the police that day, Mr. Normand responded, “Nothing briefly… I believe someone asked what happened here, but I did not comment or anything.”

[84] During cross-examination, Mr. Normand acknowledged that he gave a statement to the police eight days after the accident. He knew that the officer was investigating a fatal accident, that charges would likely be laid as a result of the accident, and that it was important that he give accurate and truthful information to the officer. Mr. Normand admitted that when the police spoke to him at the camp on January 7^th, and when he gave a statement to the police on January 15^th, he did not give full and truthful information.

[85] He testified that he did not recall having told Constable Pawson on January 7^th that he had not seen the collision, that he had been at the camp, and that he had only left the camp after he heard the collision.

[86] Mr. Normand admitted that alcohol might have affected his ability to recall events that evening. When asked what he meant by the phrase, “I was buzzed,” he stated it means having a good time.

[87] Mr. Normand also admitted during cross-examination that, when he gave his statement to Constable Pawson on January 15, 2012, he told the officer that, while the truck was catching up, he remembered seeing one of the dogs run out onto the road. He agreed with defence counsel that what he told the officer that day was more accurate than what he related in that regard during his testimony in chief.

[88] When confronted about the discrepancy in his testimony in chief that the truck was travelling approximately 80 kilometres per hour, when he had told Constable Pawson in his statement that he had not looked at the speedometer and he estimated that the truck was travelling 50 kilometres per hour, Mr. Normand said, “It would have been much faster than what the actual speed limit was and I feel I would know approximately how fast 50 kilometres or regular driving speed is.” When defence counsel informed him of the speed limit on Brule Road, Mr. Normand stated that information would not affect his answer.

[89] Mr. Normand then stated that he could not remember how fast the truck was going when it travelled north on Brule Road before turning around and heading back to the camp.

[90] Mr. Normand also stated that when the truck collided with the snowmobile, the airbags did not deploy.

The Evidence of James Holmes

[91] Mr. Holmes testified that Mr. McLaughlin was his cousin and closest friend. They had grown up together.

[92] Throughout his testimony, it was clear that what happened on Brule Road early in the morning of January 7, 2012, has left a deep and lasting scar on his memory and his emotions.

[93] Mr. Holmes testified that he arrived at Mr. McLaughlin’s camp with his girlfriend between 10:30 and 11:00 PM on January 6, 2012. He recalled he, his cousin, Mr. Frizzell, and Mr. Normand spent about an hour out in the fields adjacent to the camp on a snowmobile and some ATVs. They returned to the camp and warmed up.

[94] Mr. Holmes stated that he and Mr. Normand then left the camp in his truck and travelled north on Brule Road. They travelled along Brule Road to a point south of its intersection with Adams Road. Mr. Holmes decided to turn around at that point. When defence counsel drew his attention to Mr. Normand’s testimony about testing the programmer, Mr. Holmes stated that you would have to drive at extreme speeds to test it and he did not recall having done that.

[95] The front wheels of his truck became stuck in the ditch. After enlisting the help of his uncle to tow the truck out of the ditch, Mr. Holmes began to travel south on Brule Road back toward the camp. He stated that, as you travel south on Brule Road there are four rolling hills. He encountered his cousin on his snowmobile at the bottom (south side) of the third hill. His cousin’s camp was at the top of the last hill.

[96] Mr. Frizzell came along after that on an ATV. The occupants of the three vehicles engaged in some conversation. Eventually the three vehicles were lined up facing south parallel to each other. Mr. Holmes recalled there was some conversation before he left the camp. He stated, “I felt there was going to be some speeding happening.” He also stated he tried to get the others to go ahead of him

[97] When the signal to go was given, the snow machine left. It had better traction. When Mr. Holmes tried to leave the line, he encountered a traction issue right away. He stated that, when the wheels on his truck began to spin, he backed off on the throttle and left the line in his words, “as you would a stop light or regular traffic.”

[98] From the beginning, Mr. Holmes was able to see Mr. McLaughlin on his snow machine for about 20 metres. After that, he did not recall seeing Mr. McLaughlin again until the end. He testified that it was extremely dark that night. You could see the road from the outline of the snowbanks on either side. The only lighting was from his vehicle.

[99] Mr. Holmes testified that, as he was travelling south on Brule Road, he believed his speed was 50 to 60 kilometres per hour. At that point, he was only trying to propel the truck forward. When his truck began to go up the hill at the foot of Mr. McLaughlin’s driveway, he saw the silhouette of Mr. McLaughlin on his snowmobile, stopped in the centre of the road, and three dogs scattered in front of him.

[100] Mr. Holmes stated that, at the time he first saw Mr. McLaughlin in that position, he had begun to move his truck from the right side of the road into the centre in preparation for the turn into Mr. McLaughlin’s driveway. That turn was at a sharp angle to Brule Road and could not be negotiated from the right side of the road without clipping the snow bank or the posts that were there.

[101] When Mr. Holmes first saw Mr. McLaughlin on his snowmobile, he estimated the snowmobile was 20 to 30 metres directly in front of his truck. Mr. Holmes knew he could not avoid a collision by slamming on the brakes. He tried to soft brake and turn to the left to try to catch part of the snow bank to slow down the truck. His efforts to avoid a collision failed.

[102] The truck struck the back of the snowmobile and came to rest in the snow bank on the east side of the road. Mr. Holmes assumed Mr. McLaughlin had been ejected toward the west side of the road. He jumped from the truck and ran over to Mr. McLaughlin who was lying on the west side of the road near the snow bank.

[103] Mr. Holmes stated that he believed the collision occurred to the north of where the photograph marked as Exhibit 3 was taken. He marked the position where the truck came to rest with an orange X on Exhibit 3. He also marked the position where he found Mr. McLaughlin on the west side of the road with an orange X, just to the north of the seat that had been dislodged from the snowmobile in the collision.

[104] Mr. Holmes found Mr. McLaughlin in the snow bank at that location. He moved him a short distance onto the road, believing at first that Mr. McLaughlin was winded. He quickly realized that Mr. McLaughlin was not breathing properly, and began to administer CPR. Mr. Holmes continued the CPR until the Calvin Fire Department arrived a half-hour or so later. Members of the Fire Department took over as the primary care giver, but Mr. Holmes continued to assist them until the ambulance arrived.

[105] Mr. Holmes never left the scene of the accident prior to the arrival of the police. Eventually, he was seated in the front seat of a police vehicle that was parked approximately 30 metres to the north of the scene portrayed in the photograph marked as Exhibit 3. He recalled that he could see the tire marks in the snow in the area marked with a red circle on the photograph. Those tire marks did not make sense to him because his truck had not travelled that far.

[106] While he recalled being with Constables Ward and Pawson in a police vehicle, Mr. Holmes stated he could not recall what information he gave to the police. When Constable Pawson informed him that Mr. McLaughlin had passed away, Mr. Holmes left the vehicle and went to his father.

[107] When asked about attending at the police station to give a statement, Mr. Holmes stated that he gave Constable Pawson as much information as he could remember at the time. He testified that he tried to be truthful when he gave the statement.

[108] During cross-examination, Mr. Holmes stated that he has thought about what happened that night pretty well every day since it happened, and he expressed the belief that his memory of events might possibly be clearer now than it was then. He admitted that he had consumed three or four beers after arriving at the camp.

[109] When confronted about the evidence of Mr. Frizzell and Mr. Normand who described something like a race, Mr. Holmes stated that he did not believe there was a race. He recalled that the three vehicles were lined up on the road and that he said, “Go.” He stated that was not an invitation to race but rather a suggestion for Mr. McLaughlin to go ahead.

[110] Mr. McLaughlin got out in front. As Mr. Holmes took off, the tires on his truck spun. He immediately backed off the throttle and made the decision to accelerate more slowly so that the tires would not spin.

[111] Mr. Holmes stated that he was not speeding, he had not invited the others out there to race, and he was done with pulling his truck out of the snow. He testified that the snow machine had studs. The tires on his truck did not have studs. He had no hope of catching Mr. McLaughlin and made the decision at that point not to race.

[112] In response to a suggestion by the Crown that he had misled the police about the speed he was travelling, Mr. Holmes was adamant that he had not misled the police and that his estimate of speed was pretty accurate.

[113] He stated that he was surprised to see Mr. McLaughlin in the middle of the road, and that he had expected Mr. McLaughlin to be back at the camp ahead of him. He testified that the hill leading up to the driveway to Mr. McLaughlin’s camp is not a blind hill, and that he did not see any headlights from an approaching vehicle.

[114] When questioned by the Crown about the programmer in his truck, Mr. Holmes acknowledged that the instrument had fuel economy, 0 to 60, and quarter mile speed functions. He recalled having shown Mr. Normand the screen and how the functions worked. He stated that you have to stop the vehicle and then engage a function manually before the programmer would work. He testified that did not happen when he was out on Brule Road that night, either on the way north or on the way back.

[115] When the Crown suggested Mr. Holmes was engaged in a race with Mr. McLaughlin, Mr. Holmes replied, “A race would have been me and him side by side heading down the road, which didn’t happen.”

[116] In his video statement, Mr. Holmes told Constable Pawson that he kept seeing their headlights and reflectors in the distance. On cross-examination, he stated that what he told Constable Pawson was not accurate. He maintained that he did not see Mr. McLaughlin again until he appeared in his headlights.

[117] When the Crown suggested Mr. Holmes’ move to the centre of the road in preparation for the turn into Mr. McLaughlin’s driveway was risky, Mr. Holmes did not agree. He stated that many people travel in the centre of those roads because, if you travel too far to the right, you can be sucked into the ditch by virtue of the fact the roads are plowed wider than the travelled surface.

[118] In his video statement, Mr. Holmes said, “I shouldn’t have went.” Mr. Holmes testified on cross-examination that he did not recall saying that to Constable Pawson.

[119] Mr. Holmes admitted that he knew the road was slippery, but added that there was a risk for anyone travelling on a snow packed road.

Credibility and Reliability of Witnesses

[120] Credibility relates to the veracity or honesty of a witness’ testimony. When assessing the credibility of the testimony of a witness, the court is entitled to test the evidence of the witness internally to determine whether it is reasonable and makes sense within itself, and to test it in the light of other evidence that is accepted or facts that are known. Accordingly, when determining the credibility of a witness, the evidence of that witness should be assessed in the context of considering all the other conflicting evidence.

[121] Reliability has to do with the accuracy of a witness’ testimony. The reliability of the testimony of a witness involves considerations of the ability of the witness to observe, recall, and recount events accurately.

[122] Mr. Frizzell admitted that he was not cooperative with the police on either of the two occasions they attended at the camp in the early morning of January 7, 2012. He also admitted that he did not tell the truth to the police about his involvement in the events leading up to the accident until eight days later.

[123] He moved Mr. Holmes’ truck from the accident scene on his own initiative. There was no evidence that Mr. Holmes or any other person asked him to do that. As a result of that action, he was charged under the Highway Traffic Act with the offence of obstruct police. He pleaded guilty to that charge.

[124] Mr. Frizzell had been at the camp since early the previous evening and had been drinking beer to the extent that, in his words, “I had enough to drink.”

[125] In most respects, his testimony is not at odds with the testimony of Mr. Holmes. For that reason, I do not find it necessary to assess or weigh his credibility or the reliability of his testimony.

[126] Mr. Normand’s testimony is more troubling. He arrived at the camp around dinnertime on January 6^th. By the time he was out on Brule Road as a passenger in Mr. Holmes’ truck, he had consumed enough beer to be, in his word, “buzzed.”

[127] Mr. Normand admitted to having been untruthful to the police twice during the early morning of January 7^th when the police spoke to him at the camp, and again on January 15^th when he gave a statement to the police.

[128] In addition, in his statement to the police, he estimated the speed at which Mr. Holmes was travelling to be 50 kilometres per hour. He did not mention an estimate of speed at 80 kilometres per hour until he testified in chief at trial. The explanation he gave for the discrepancy in his estimates of speed was that they related to two different times from the beginning of the race until Mr. Holmes’ speed at the time of impact. Given the number of occasions on which Mr. Normand spoke to the police, that explanation simply defies credibility.

[129] Mr. Normand testified that he and Mr. Holmes found Mr. McLaughlin lying in the ditch on the east side of the road and that they carried Mr. McLaughlin out onto the road. He marked the spot in the ditch where they found Mr. McLaughlin with a pink X on Exhibit 3.

[130] Mr. Frizzell and Mr. Normand both testified about walking over to the snowmobile in the ditch on the opposite side of the road to turn off the ignition. Their footprints from the side of the road through the ditch to the snowmobile are clearly visible in the snow. Although there appears to be a large disturbance in the snowbank and the ditch on the east side of the road where Mr. Normand stated they found Mr. McLaughlin, there are no visible footprints in the snow from anywhere near the area where Mr. Normand stated they relocated Mr. McLaughlin to the road.

[131] In addition, the evidence is clear that Mr. Holmes swerved to the left to try to avoid the snowmobile. The front right corner of his truck struck the rear of the snowmobile. The seat of the snowmobile came to rest in the snowbank on the west side of the road. The snowmobile came to rest up against some trees further to the west on that side of the road. Given the mechanics of the collision, and the location of the damage to the truck, one would reasonably expect to find Mr. McLaughlin somewhere in the area to the front or right of the point of impact, and not in the ditch on the east side of the road.

[132] During his testimony about the programmer in Mr. Holmes’ truck, Mr. Normand inferred that the programmer was activated for quarter mile time when the race occurred. Mr. Holmes denied that the programmer was activated for any race function. During the course of their investigation, the police seized the truck pursuant to a search warrant. There was no evidence introduced at trial suggesting that the programmer was engaged for any of its racing functions.

[133] Mr. Normand estimated that, when he and Mr. Holmes first saw Mr. McLaughlin on his snowmobile in the middle of the road, the snowmobile was 200 to 300 meters ahead of them. He testified that Mr. Holmes took evasive action by swerving to the left with the result that the truck travelled off the road into the ditch and then out of the ditch onto the crest of the hill.

[134] If Mr. Holmes first saw the snowmobile at that distance, it is highly probable that he could have brought the truck to a full stop without colliding with it. In addition, there are no tire tracks through the snow bank or the ditch on the east side of the road in the area where the collision occurred, and yet tire tracks are clearly visible further south on that side of the road in the area identified by Mr. Frizzell with a red circle as the location where the truck came to a stop.

[135] During his testimony, Mr. Normand admitted that his consumption of alcohol might have affected his ability to remember events that evening. He was seated in the passenger seat. He could not see, and did not look at, the speedometer. Notwithstanding his ability to recall speeds at which the truck was travelling when heading south on Brule Road, he could not remember how fast the truck was going when it travelled north on that road.

[136] I reject Mr. Normand’s evidence about the speed of the truck reaching 80 kilometres per hour, about the programmer having been engaged in a racing function when the truck was travelling south on Brule Road, and about the distance the truck was from Mr. McLaughlin when he first came into view sitting on his snowmobile in the middle of the road. I find Mr. Normand’s evidence about those matters to be both incredible and unreliable.

[137] As might be expected, Mr. Holmes’ testimony was not perfect. For example, he testified that his truck came to a stop in the ditch on the east side of the road in the area depicted in the lower left corner of Exhibit 3. I find that is highly unlikely. Mr. Frizzell testified that he was able to get the truck out of the ditch onto the road by rocking it back and forth. One would expect to see visible tire tracks in the snow from that activity. None are apparent in exhibit 3 at the location Mr. Holmes identified where his truck came to rest.

[138] During cross-examination, Mr. Holmes testified that the word “Go” he uttered was not an invitation to race, but simply a gesture to Mr. McLaughlin to go ahead of him. Later on during cross-examination, when asked by the Crown about the comment he made in his video recorded statement, “I shouldn’t have went,” Mr. Holmes testified that he did not recall saying that to Constable Pawson.

[139] During closing submissions, the Crown invited the court to find that Mr. Holmes had a selective memory and that he was evasive when answering a number of questions during his testimony. I do not agree. Constable Pawson testified that he found Mr. Holmes to be cooperative throughout his dealings with him during the investigation. His impression was that Mr. Holmes was endeavouring to be truthful, and tried to give complete answers to the questions he asked.

[140] Mr. Holmes’ testimony at trial left me with a similar impression. In response to a question by the Crown suggesting he was selectively remembering everything that has to do with this, Mr. Holmes replied, “I don’t think so, no. I remember some pretty detailed moments that I can’t really forget… selective, no.” In my view, hesitation before giving answers to questions on cross-examination does not necessarily compel a conclusion that a witness is being evasive. This is particularly so in this case where the man accused of an offence that resulted in the death of his cousin and closest friend continues to this day to be traumatized by that event.

[141] Normally, in a trial where the accused calls a defence, and the defence version of the facts is at odds with the Crown’s version, the court engages in an assessment of the credibility of the witnesses who testified at the trial in accordance with the instructions given by the Supreme Court of Canada in R. v. W.(D.).[^6] If the court believes the accused, or if it does not know whether to believe the accused or the evidence called by the Crown, or if it does not reject the evidence of the accused, it must acquit the accused. The Supreme Court of Canada went on in that decision to instruct trial courts that, even if the court disbelieves the accused, before a court can convict, it has to be convinced beyond a reasonable doubt of the guilt of the accused based on the whole of the evidence it does accept.

[142] That instruction is not particularly helpful in this case because, even though I find no reason to reject the evidence of Mr. Holmes, he admitted to having driven the vehicle that was involved in a collision that resulted in Mr. McLaughlin’s death. In addition, having rejected certain portions of Mr. Normand’s evidence, there is not much difference, if any at all, between the Crown and defence versions of how the collision occurred. In the end, I must still consider whether on the evidence I accept, viewed as a whole, the Crown has proved beyond a reasonable doubt that Mr. Holmes operated his vehicle in a manner that was dangerous to the public.

Determination of the manner in which Mr. Holmes operated his vehicle

[143] When undertaking the determination of whether Mr. Holmes operated his truck in a manner that was dangerous to the public, the following two questions must be answered:

i. Did Mr. Holmes operate his motor vehicle 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 was being operated, and the amount of traffic that at the time was, or might reasonably have been expected to be, at that place?

ii Did Mr. Holmes’ manner of driving, viewed on an objective basis, constitute a marked departure from the norm, that is, from the manner in which a reasonably prudent driver would drive in the same circumstances?

[144] The first question addresses the actus reus of the offence of dangerous driving. Brule Road is a remote road in Calvin Township, a rural municipality. It is a fairly straight road that travels in a north-south direction between Peddler’s Road to the north and McLaughlin Road to the south.

[145] On January 7, 2012, Brule Road was a plowed, hard packed, snow covered road with a light dusting of fresh snow on the surface.

[146] Prior to the accident, the three vehicles travelled along a flat stretch of the road that culminated with a small hill leading to the entrance to the driveway to Mr. McLaughlin’s camp.

[147] Very few residents live in the immediate area.

[148] With the exception of Mr. Holmes’ uncle’s vehicle that came to tow Mr. Holmes out of the ditch before the accident, none of the witnesses observed any vehicular or pedestrian traffic on Brule Road during the night of January 6 and the early morning of January 7, 2012, prior to the accident.

[149] The accident occurred in the early morning of January 7, 2012. There was no evidence that any vehicular or pedestrian traffic was or should have been expected on that portion of Brule Road at that time.

[150] The speed limit on Brule Road is 80 kilometres per hour. I find as a fact that Mr. Holmes’ vehicle was travelling 50 to 60 kilometres per hour prior to the collision. The collision damage to the truck and the failure of the air bags to deploy following the collision are consistent with that finding of fact.

[151] Mr. McLaughlin’s snowmobile accelerated very quickly from the point where the three vehicles had been lined up on Brule Road facing south. By the time Mr. Holmes reached the bottom of the hill leading to the driveway to Mr. McLaughlin’s camp, he expected that Mr. McLaughlin would already be back at his camp.

[152] Apart from when the three vehicles were lined up facing south on Brule Road, they were never beside one another again. Mr. McLaughlin attained immediate acceleration on his snowmobile. Mr. Holmes had difficulty accelerating, first spinning his wheels, then backing off, and accelerating slowly. Mr. Frizzell experienced even more difficulty than Mr. Holmes accelerating on the ATV that he was operating.

[153] There were no bobbing, weaving, sudden lane changes, sudden braking, cutting off, or other reckless manoeuvres by any of the three vehicles that would have imperilled the safety of the occupants of the other two vehicles in the immediate area. The vehicles were not driven aggressively side by side. The vehicles were not in close proximity to each other over a significant distance.

[154] Given those facts, I conclude that the Crown has failed to prove beyond a reasonable doubt that Mr. Holmes’ driving was objectively dangerous to the public.

[155] In the event that my assessment of the evidence in that regard is incorrect, I should go on to address the mens rea of the offence charged, i.e. whether Mr. Holmes’ driving, viewed objectively, constituted a marked departure from the manner in which a reasonably prudent driver would have driven in the same circumstances.

[156] In that regard, I repeat that Mr. Holmes was not speeding. He was driving 20 to 30 kilometres below the speed limit on Brule Road.

[157] I accept Mr. Holmes’ evidence that he abandoned any thought of a race at the outset when Mr. McLaughlin gained immediate traction and accelerated quickly out in front of him, while his wheels spun initially on acceleration and he had to back off on the throttle and accelerate more slowly in order to gain traction.

[158] Mr. Frizzell, Mr. Normand, and Mr. Holmes all expected Mr. McLaughlin to have arrived back at his camp before he was spotted on his snowmobile in the middle of the road on the hill short of the turn into the driveway to the camp. In those circumstances, it cannot be said that a reasonable person ought to have been aware of the risk that, instead of going to his camp, Mr. McLaughlin would stop his snowmobile in the centre of the road, short of the driveway leading to his camp.

[159] As soon as Mr. Holmes saw Mr. McLaughlin in the middle of the road, he immediately took evasive action in an attempt to avoid a collision. Sadly, his efforts to avoid a collision failed, but he reacted as one would expect a normal prudent driver to react in unanticipated circumstances.

[160] I therefore conclude that the Crown has failed to prove beyond a reasonable doubt that Mr. Holmes’ driving was a marked departure from the conduct of a reasonable person.

Result

[161] In either event, I find the Crown has failed to prove beyond a reasonable doubt that Mr. Holmes operated his truck in a manner dangerous to the public. There is no included offence to the offence charged.

[162] The court must be vigilant not to criminalize the conduct of a morally blameless person. A conviction for dangerous driving should only be visited upon a person whose driving is so wanting as to be deserving of criminal sanction.

[163] The evidence compels a conclusion that Mr. Holmes is not such a person. I therefore find him Not Guilty.

[164] This has been an emotional and difficult trial for many people. The consequences of the collision that occurred on January 7, 2012, were catastrophic and tragic. My decision should not be interpreted to the effect that Mr. Holmes was not in any way responsible for the collision that occurred. Rather, it is limited to findings that the Crown has failed to prove beyond a reasonable doubt that his driving, prior to the collision, was criminal in nature.

The Honourable Mr. Justice G. Valin

Delivered: March 16, 2016

[^1]: 2008 SCC 5, [2008] 1 S.C.R. 49 at paras. 42-46. [^2]: Ibid, para.46. [^3]: Ibid, para. 48. [^4]: Ibid, paras. 47-49. [^5]: 2012 SCC 26, [2012] 2 S.C.R. 60 at para. 30. [^6]: 1991 CanLII 93 (SCC).