Court Information

COURT FILE NO.: 15-30000062-0000 DATE: 20160425 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN Plaintiff – and – KYLE HAZELTON Defendant

COUNSEL: Joshua Levy, for the Plaintiff Brian Kolman, for the Defendant

HEARD: April 4, 5, 6, 8, 11 and 25, 2016

K.P. WRIGHT, J.

Introduction

[1] Kyle Hazelton comes before this court charged with the following offences; criminal negligence causing death, dangerous driving causing death, and failing to stop at the scene of an accident. All of these charges stem from an incident that occurred on July 18, 2013 that resulted in the untimely and tragic death of Scott Shannon.

[2] The evidence in this matter was heard over the course of three days. The Crown relied on the evidence of six witnesses. The defence elected to call no evidence. In addition to the testimony of the six witnesses, 26 exhibits were filed on consent of both parties, including an agreed statement of facts.

[3] This is my judgment.

Overview of Evidence

[4] I will now briefly review the evidence. I will further develop the evidence in detail when necessary in my analysis.

[5] At the outset of the trial, defence counsel and Crown counsel filed an agreed statement of facts (exhibit #1). Those facts can be summarized as follows:

• On July 18, 2013, Kyle Hazelton and Scott Shannon were working together on a job at the home of Sean Rahim at 185 Fallingbrook Road in the City of Toronto.
• They arrived at the address at approximately 8 am that morning.
• Kyle Hazelton drove his new black GMC pickup truck to the address. (exhibit #4)
• At 6:51pm, Brandy Parsons, the spouse of Sean Rahim called 911 to report that Scott Shannon was lying on the road in front of their home unconscious and bleeding from the head.
• Scott Shannon was transported to St. Michael’s hospital where emergency doctors diagnosed him with a closed head injury that was non survivable.
• On July 20, 2013, Scott Shannon succumbed to his injuries and was pronounced dead.
• The forensic pathologist concluded that Scott Shannon died as a result of a closed head injury due to blunt force trauma.(exhibit #2)
• A sample of Scott Shannon’s blood was collected and the forensic toxicologist determined that his blood/ alcohol level at 6:50 pm on July 18, 2013, would have been between 309 and 329 milligrams of alcohol in 100ml of blood. (exhibit #3)
• Scott Shannon had two outstanding charges for impaired driving.

[6] During submissions, defence counsel further indicated that there was no dispute that Mr. Hazelton was at all times the driver of the black truck involved in this incident and that he drove his black truck to and from the job site on July 18, 2013. Defence agreed that this was the only logical inference based on the evidence presented.

Constable Ireland

[7] Constable Ireland was the Crown’s first witness. He was dispatched and arrived on the scene after the paramedics were already attending to Scott Shannon. He testified that Fallingbrook Road was located in a residential neighborhood. He described it as a wide two lane, undivided, asphalt roadway, with one southbound lane and one northbound lane. He said it was a level straight roadway and estimated the speed limit to be between 40 – 50 km/hr. He said this particular day was hot and dry. He said when he arrived, Scott Shannon was located on the roadway in the front of the driveway of 185 Fallingbrook Road. Constable Ireland’s evidence was not contested.

Daniel Oroth

[8] Daniel Oroth was jogging on Fallingbrook Road and said he saw a man standing in front of a black pick-up truck with his hands on the hood. He said the truck was stationary and he heard someone say something to the effect of “come on out - want to talk to you”. He said the speaker, whom he assumed to be the man standing outside of the truck, was loud but not yelling or angry, he described his tone as polite but firm. He said after the statement he thinks he remembers the man in front of the truck edging towards the driver’s side corner and that is when he looked away. He said he did not get a good look at who was in the truck. He recalled only one person in the driver’s seat, he thought was a male between 25 to 45 years of age.

[9] He said he looked away and continued jogging. He said when he had jogged to the end of the truck he heard a vehicle accelerate, heard a thud and what he thought was breaking glass. At this point he turned around and saw a man lying in the roadway and the truck about 100 feet away travelling at no more than 25 km /hr.

[10] There are no issues with the credibility of Mr. Oroth’s testimony.

Sean Rahim

[11] Sean Rahim was an off duty Toronto Police officer who testified that Kyle Hazelton and Scott Shannon were working in his backyard on July 18, 2013. He said they started work at about 8 am. He said that he, along with Kyle and Scott, went swimming in his pool between 4 and 5 pm that afternoon. He said that all three of them were drinking beer throughout the day. He also said that Scott and Kyle were both sober when they left his house that afternoon. He said that 5 or 10 minutes after Scott left, he heard his girlfriend Brandy screaming and that is when he went outside and found Scott on the roadway.

Alicia Laborde

[12] Alicia Laborde testified that she was driving northbound on Fallingbrook Road when she noticed a man standing at the driver’s side door of a stationary black pick-up truck that was facing southbound. She said she did not hear any conversation. She said the man had both hands on the driver’s door windowsill. Initially she said she was 40 feet away when she first saw the truck. Later, she said she was 20 feet away. She said she was at all times travelling at 40 km/hr. She said, as the front of her vehicle approached the front of the truck, the truck suddenly started driving away and the man at the window was lifted into the air and landed on the ground. She said the man held on for 3 seconds. She said the man was completely lifted off the ground and that he was horizontal to the ground and then he dropped. She said she was 5 feet from the man when the truck started to move. She said she pulled her car over and approached the man on the ground. She said she tried to call 911 but due to the shock she was unable to recall her passcode and access her phone.

Juan Delousrios

[13] Juan Delousrios was the Toronto Police Service accident reconstructionist who investigated this incident. He was not qualified nor did he testify as an expert witness. He testified that there were no brake or tire marks at the scene of the accident. He examined Kyle Hazelton’s truck after it was seized and made the following observations:

• scuff/ cleaning marks on the left side of the truck from the driver’s door to the box (exhibit 10A);
• scuff/ cleaning marks on the right side of the truck (exhibit 11); and
• A .5cm cut on the driver’s door windowsill (exhibit 10D).

Detective Constable Elaschuk

[14] Detective Constable Elaschuk was the officer in charge of this investigation. She testified that in the early morning hours of July 19, 2013, she attended at the residence of Mr. Hazelton and spoke with him. At that time she advised Mr. Hazelton that the police believed his vehicle had been involved in an accident. She told him that it was going to be seized by the police. That exchange was recorded and transcribed and can be found at exhibits 12A and 12B. At approximately 1:15am, Mr. Hazelton exited his residence and was arrested. Subsequent to his arrest, Detective Constable Elaschuk questioned Mr. Hazelton. His responses were recorded in her notebook.

Position of the Crown

[15] Crown counsel’s theory is that these two young men had, over the course of the day, consumed 12 cans of beer between them while working in Sean Rahim’s backyard. He says when it came time to leave, Scott Shannon did not want his friend Kyle Hazelton to drive his truck home because he had been consuming alcohol. He says because Scott Shannon had two outstanding impaired charges, he did not want his friend to make the same mistakes he had made. He says that is why Scott Shannon positioned himself in front of the truck with his hands on the hood and said something to the effect of “come on out, I want to talk”. He says Scott Shannon then went to the driver’s side window, held onto the windowsill with both hands in an effort to convince Kyle Hazelton not to drive. He says this is when Kyle Hazelton suddenly accelerated with the intention of dislodging Scott Shannon from his vehicle. The Crown takes the position that at the very least Kyle Hazelton would have known that Scott Shannon was holding on to his vehicle and should have appreciated the risk involved by putting the vehicle in motion. He says that when Kyle Hazelton drove off, he would have been well aware of the accident he had caused and that he made a choice not to stop.

Position of Defence

[16] Defence argues that the inferences the Crown urges me to draw are not available on the evidence and amount to pure speculation. He argues that there is nothing remarkable or dangerous about one friend standing at the window of another’s friend’s vehicle and talking, and that this is all that happened on this occasion. He argues that the evidence of Ms. Laborde, the main crown witness, does not make logical sense and should not be relied upon. He says that this, in combination with the lack of expert evidence in regard to acceleration, and the lack of evidence in relation to the interaction between Scott Shannon and Kyle Hazelton at the driver’s door, must raise a reasonable doubt about the chain of events that resulted in the death of Scott Shannon.

The Principles to be Applied

[17] The principles to be applied in this case are the same as those to be applied in any criminal trial.

[18] In this case, Kyle Hazelton is presumed to be innocent, unless and until the Crown has proven each essential element of the offences beyond a reasonable doubt. It is not for Mr. Hazelton to prove his innocence. Mr. Hazelton is under no obligation to testify or call evidence. The onus rests and remains squarely on the shoulders of the Crown at all times to prove guilt beyond a reasonable doubt.

[19] Reasonable doubt is based upon reason and common sense. It is logically connected to the evidence or the lack of evidence.

[20] It is not enough for me to believe that Mr. Hazelton is possibly or even probably guilty. Our law requires more. Our law requires proof beyond a reasonable doubt. As a standard, reasonable doubt lays far closer to absolute certainty than it does to a balance of probabilities. At the same time, I am mindful that reasonable doubt does not require proof beyond all doubt, nor is it proof to an absolute certainty.

Law

[21] Along with failing to stop at the scene of an accident, Mr. Hazelton is charged with dangerous driving cause death and criminal negligence causing death in the operation of a motor vehicle.

[22] It is important to understand and appreciate the differences between these two offences.

[23] In order to find Mr. Hazelton guilty of dangerous driving, I must first be satisfied beyond a reasonable doubt that Mr. Hazelton’s driving on this occasion, when viewed objectively in all of the circumstances, was in fact dangerous to the public. This requires a meaningful inquiry into the manner of driving. I am mindful that the focus of this inquiry must be on the driving and the risks created by the driving and not on the consequences of the driving. (R. v. Beatty, 2008 SCC 5, 2008 SCC5, [2008] 1 S.C.R. 49; R. v. Roy, 2012 SCC 26, [2012] 2 S.C.R. 60).

[24] The Crown must then satisfy me beyond a reasonable doubt that the dangerous manner of Mr. Hazelton’s driving was the result of a marked departure from the standard of care which a reasonable person would have exercised in the same circumstances. This is the minimum fault requirement to prove the mens rea component of this offence. It is referred to as the modified objective standard. I am mindful that the Crown does not have to prove that the dangerous driving was deliberate or intentional. If proven, this type of subjective standard, although not required, would most certainly support a conviction for dangerous driving. I am further mindful that the objective mens rea component may be inferred from a finding that the driving amounted to a marked departure from the norm. However, even in the face of such a finding, it is still incumbent on me, as the trier of fact, to examine all of the circumstances to determine whether it is appropriate to draw the inference of fault from the manner of driving. (R. v. Beatty; R. v. Roy supra)

[25] Criminal negligence requires a higher standard than dangerous driving in two respects. The conduct must be more marked in both the physical and mental elements of the offence. Dangerous driving requires a “marked departure”, whereas criminal negligence requires a marked and substantial departure from the conduct expected of a reasonable person. Secondly, for criminal negligence the Crown must prove that the marked and substantial departure conduct amounts to a wanton and reckless disregard for the lives and safety of others. (R. v. Willock, 2006 ONCA 20679, [2006] O.J. No. 2451 (Ont. C.A.))

[26] The elements of dangerous driving are included in the offence of criminal negligence. Therefore, if the Crown fails to prove the offence of dangerous driving beyond a reasonable doubt, they will also have failed to prove the offence of criminal negligence.

Analysis

[27] To say that this is a sad and tragic case would be an understatement. Scott Shannon lost his life and as a result his family and friends have suffered deeply. I did not know Scott Shannon and I do not know his family and friends, but I know first-hand the depth of the pain one feels as a result of untimely death of a loved one. Accordingly, I remind myself as I navigate my way through the facts and the law that my decision cannot be one based on emotion. My job is to set aside those human emotions that can at times be overwhelming and approach my assessment of the evidence dispassionately and with an open mind.

[28] With that said, I will now turn to my analysis of whether the Crown has proven the elements of the offences charged beyond a reasonable doubt.

Dangerous Driving / Criminal Negligence Cause Death

[29] This case is somewhat unique in that conduct said to constitute the act of dangerous driving and/or criminal negligence occurred entirely within a 1 to 3 second timeframe. There is no evidence of bad driving immediately before or after this incident. To the contrary, the evidence is that Mr. Hazelton’s driving immediately after the incident was entirely proper. Prior to the incident the truck was stationary.

[30] The only evidence of improper driving comes from the witness Alicia Laborde. Ms. Laborde’s evidence was crucial to the Crown’s case. Her credibility was not in issue, she clearly did her best to recount what she observed. It is the reliability of Ms. Laborde’s evidence that causes concern for the court.

[31] And here is why.

[32] Ms. Laborde testified that she was driving northbound on Fallingbrook Road when she observed a stationary black truck facing southbound and a man at the driver’s side window. She said that the man was facing the driver and appeared to be talking to the driver. She said that the driver’s window was down all the way and the man had both hands on the driver’s windowsill. She said that just as she was passing the truck it started to drive away. She said the man was still holding on, that he was lifted up into the air as the truck drove forward to a horizontal position. She said after three seconds he could not hold on any longer and landed on his back on the roadway. Ms. Laborde said was travelling at 40km/hr as she approached and passed the vehicle.

[33] She was uncertain about her distance from the truck when she first noticed the man standing next to the driver window. She initially said she was 40 feet away and then she said she was 20 feet away. Regardless of the exact distance, given that she was travelling at a speed of 40 km/hr, I find that her opportunity to observe the situation was extremely limited. In my view, it was closer to one second than three seconds. There is no doubt that she saw Mr. Hazelton’s truck stationary in the roadway. There is no doubt that she saw Scott Shannon standing next to the truck. But even on her evidence there was nothing extraordinary about this situation. This did not cause her to slow down or take special notice, nor should it have. It is quite common for people to stand at the window of a friend’s vehicle and have a conversation. This is something we have all observed and likely participated in during the course of our lifetimes. There is absolutely nothing remarkable or inherently dangerous about this situation. I would go farther and say that even driving away when a person still has a hand on your windowsill would in and of itself not amount to driving in a dangerous manner.

[34] The Crown argues that what makes this situation different is that Scott Shannon was holding on to the windowsill in an attempt to stop Kyle Hazelton from driving. He argues that Kyle Hazelton knew this and attempted to dislodge Scott Shannon from his vehicle on purpose. Alternatively, he argues that even if it wasn’t intentional, he ought to have foreseen the risk to life and safety by putting the car in motion while Scott was holding on.

[35] So, I ask myself, can I be sure that Scott Shannon was in fact holding on to Kyle Hazelton’s vehicle when he drove forward? The only evidence about Scott Shannon’s hands comes from Alicia Laborde. Not only does she say she saw Scott Shannon’s hands placed on the windowsill, her description implies that he had a tight and deliberate hold on the windowsill.

[36] I have thoroughly reviewed the evidence of Ms. Laborde in relation Scott Shannon’s hands and find myself unable to rely upon it.

[37] Here is why.

[38] The truck in question is a full size GMC pick-up truck with large side view mirrors. In my view, the driver side mirror would have to some extent obstructed Ms. Laborde’s ability to see Scott Shannon’s hands during her approach. So, I ask myself, did she specifically look at his hands or did she assume that his hands were on the windowsill because he was standing next to the driver window? The assumption would be common and almost automatic for anyone given the situation.

[39] I became more concerned with the reliability of her evidence when she testified with certainty that Scott had nothing in his hands. I am struggling to understand how she could have been so laser focused on Scott Shannon’s hands and at the same time driving a motor vehicle, that she was not entirely familiar with, on a residential street with a busy public park on the east side, listening to the radio, all at a speed of 40 km/hr.

[40] I am also mindful that as she was passing the truck, she would have been looking at Scott Shannon’s back, which would have further obstructed her ability to see his hands clearly and fully. Her view would have been more challenged by the fact that she would have been looking in an upward direction, given that her car sat much lower to the ground than the truck driven by Mr. Hazelton.

[41] At no time would Ms. Laborde have had a clear and full view of Scott Shannon’s hands, and certainly at the speed she was travelling, along with the other factors I have noted, she would not have had the ability to see if he had something in his hands.

[42] There is a fundamental difference between touching or placing ones hands on a windowsill and hanging on to it. Ms. Laborde’s description was of a tight grip it had a deliberate and fixed quality to it. I appreciate that she believes she saw him hanging on to the windowsill, but I do not share that belief. Even if Scott Shannon did have his hands on the windowsill at some point, I am not convinced that he was hanging on in the way that Mr. Laborde described.

[43] Ms. Laborde goes on to say that when the truck suddenly moved forward, the man held on and was lifted off the ground into a horizontal position and that he held on for 3 seconds before landing on the pavement. She says she turned her head and sees all of this as she is passing the truck in her vehicle. Ms. Laborde is clearly wrong about the amount of time she saw Scott Shannon hanging on to the truck. Travelling at a speed of 40km/hr combined with the movement of the truck, it would have taken her only a fraction of a second to pass the truck. There is a significant difference between observing something in 3 seconds and observing something in a fraction of a second. I do not accept that Ms. Laborde observed Scott Shannon hanging on to the truck for 3 seconds. I find that Ms. Laborde only had a fraction of second to make her observations.

[44] Ms. Laborde testified that as she played the entire event back in her mind, it all appeared to be going in slow motion. Ms. Laborde testified that immediately after the incident she was unable to unlock her phone and call 911 because she was in a state of shock. It is not uncommon for people who have been exposed to traumatic events to unconsciously fill in gaps or draw conclusions about what they saw in attempt to understand it. I find myself concerned that Ms. Laborde was doing just that, filling in the gaps. Given her extremely limited opportunity to observe the entire event including Scott Shannon’s hands, I simply do not accept the she could have seen the type of grip he had on the windowsill. In my view, her conclusion was likely born out of a natural instinct to put the pieces of the puzzle together, as opposed to being based on what she actually observed.

[45] I do find as fact that Scott Shannon was knocked off his feet and fell to the ground and hit his head, simultaneous with the truck pulling away.

[46] As to him being lifted to a horizontal position, I remain uncertain, in large measure because the evidence of normal and gradual acceleration seems to be inconsistent with lifting a man off his feet to the point of being horizontal in a fraction of a second. There is no expert evidence before me as to what amount of force or speed would be necessary to cause such a result.

[47] The only evidence of acceleration comes from Ms. Laborde and Mr. Oroth.

[48] I have reviewed Ms. Laborde’s evidence on this point thoroughly; she described the truck pulling away unexpectedly and suddenly repeatedly through the course of her evidence. I find that in doing so, she did not speak to the speed of the vehicle. I find that her use of the word suddenly is not a reference to the speed of the truck, but to the fact that it drove forward from a stationary position and that she did not expect it to do so. I am mindful that the Crown submits that Mr. Laborde testified that the truck “gunned it.” I do not agree. I have reviewed the evidence and can find no such reference. Moreover, there is no other evidence to support a forceful acceleration.

[49] Mr. Oroth, the jogger, does testify as to his impression of the acceleration. He said he recalls a loud engine noise and described it to be the same as when a vehicle pulls away from a green light at an intersection. It is important to note that Mr. Oroth did not see the vehicle pull away, he only heard the vehicle pull away. Perhaps more important is what he did not hear. He did not hear the sound of squealing tires or spinning tires. Crown argues that Mr. Oroth’s evidence of a loud engine noise is consistent with a hard and forceful acceleration and inconsistent with a gradual acceleration.

[50] I disagree.

[51] I find Mr. Oroth’s description of the acceleration as being the same as someone pulling away from a green light to be analogous to a gradual acceleration.

[52] Moreover, there were no brake marks or tire marks on the roadway where the incident took place, which in my view is consistent with a gradual and normal acceleration.

[53] Finally, Mr. Oroth observes the truck travelling at a speed of approximately 25km/hr immediately after the incident. He describes it as coasting. In my view, this along with all of the evidence on point is very much consistent with a gradual acceleration. There is no evidence to support a finding of sudden and forceful acceleration.

[54] The Crown has pointed to two pieces of evidence on Kyle Hazelton’s truck that he says is consistent with his theory. I will review those now.

[55] This evidence comes from Juan Delousrios. Mr. Delousrios was and is employed by the Toronto Police Service as an accident reconstructionist. He was not proffered as an expert witness in this trial. He testified that he was involved in the investigation and made the following observations on Kyle Hazelton’s truck:

• Cleaning or scuff marks on the left side of the vehicle from the driver door to the box, and
• A .5 cm cut on the windowsill of the driver’s side bottom end of the window.

[56] The Crown argues that the cleaning/scuff marks are consistent with Scott Shannon holding on to the vehicle and his body being lifted into a horizontal position.

[57] I disagree and here is why.

[58] There is no evidence about when these cleaning/ scuff marks were made, nor is there evidence about how long they had been on the vehicle. I do not know how fresh or old they were. Mr. Delousrios testified that there were also cleaning/scuff marks on the passenger side of the vehicle. Moreover, there is no evidence that Scott Shannon’s body came in contact with the vehicle.

[59] I have examined the photographs referred to by the witness. I find that, but for the markings made by the witness in the course of his examination of vehicle, it would be almost impossible to make out these alleged marks.

[60] For these reasons, the marks identified by Mr. Delousrios are of no value to me in my assessment.

[61] I have also turned my mind to the .5cm cut on the driver windowsill. The Crown asked me to infer that this is a finger mark, made by Scott Shannon in his attempt to hold on to the moving vehicle. Again, there is no evidence about how long the cut may have been there. The Crown says it is a new truck and the common sense inference is that there would not have been a cut there prior to the incident.

[62] I can accept that it is likely consistent with the placement of Scott Shannon’s hands. However, it seems odd that if he were holding on with enough force to make that cut, it would have been restricted to just one finger. Moreover, there is no evidence that any of his fingers or fingertips were injured, which one might expect under the circumstances.

[63] I am also mindful that this is a work truck for Kyle Hazelton. As such, tools and other items are being transported to and from job sites in the truck. There is evidence in the photographs that the truck is well used despite being a newer truck.

[64] For the reasons stated, I am not prepared to place any weight on the .5cm cut.

[65] I will now turn to the evidence of Detective Constable Elaschuk. She testified that in the early morning hours of July 19, 2013, she attended at the home of Kyle Hazelton. She spoke briefly with Mr. Hazelton at his door and then later at the police station after his arrest.

[66] The interaction with Mr. Hazelton prior to his arrest was audio recorded and transcribed (see exhibit 12A and 12B). The Crown directs me to the following questions and answers:

ELASCHUK: I’m Officer ALASCHUK. This is my partner Officer SWAINE okay um, Kyle we’re, we’re here to uh, because of an incident that happened earlier. We’re doing an investigation okay (UI:01) happened earlier on near 185 Fallingbrook Road. HAZELTON: Okay. ELASCHUK: Okay um the incident uh involved apparently a vehicle that is owned by you. HAZELTON: Yeah. ELASCHUK: (UI:03) HAZELTON: Who did I hit?

[67] It is Kyle Hazelton’s response, “Who did I hit”, that the Crown relies on as proof of his knowledge of the accident.

[68] I disagree and here is why.

[69] There are two significant inaudibles in the statement that impair my ability to assess it in any meaningful way. The first inaudible comes in the first paragraph where Detective Constable Elaschuk is explaining the investigation to Kyle. The second, and more significant inaudible, comes immediately before Kyle Hazelton’s response. This absence of context not only makes it impossible to attach any meaning to the statement, but in my view, to do so would be highly speculative and an error in law.

[70] The second statement relied upon by the Crown was recorded in Detective Constable Elaschuk’s notebook at approximately 6:38 am after Kyle Hazelton had been arrested and spoken to counsel. I have reviewed and find that nothing in this statement advances the Crown’s case.

[71] Finally, I have turned my mind to the theory advanced by the Crown that Scott Shannon was attempting to stop his friend Kyle from driving while impaired. He says he was motivated to do so because he had two outstanding impaired driving charges and did not want his friend to make the same mistake he did.

[72] I am mindful that the boundary that separates a permissible inference from impermissible speculation is often a blurry one. Permissible inferences must be grounded and logically flow from the evidence and in this situation they do not.

[73] There is absolutely no evidence, circumstantial or otherwise, about how Scott Shannon felt about his outstanding charges. I have no way of knowing how those charges were impacting him, or how he felt about them. In my view, the inference the Crown wants me to draw falls squarely under the category of impermissible speculation.

[74] For those same reasons, I am not prepared to conclude that Scott Shannon was trying to talk Kyle Hazelton out driving when he was positioned at the driver side window. Again, there is no direct evidence before me of what they were speaking about at the window.

[75] What I do know is that these two young men were good friends, who had spent the day working together. There is no evidence of any hostility or animosity between them. To the contrary, by all accounts, the day was a combination of hard work and some fun. Scott Shannon was singing the praises of Kyle Hazelton to Mr. Rahim right before he left for the day. There is no evidence to suggest that Scott Shannon was concerned about Kyle Hazelton’s ability to drive as the day came to an end. He certainly did not voice any concerns to Mr. Rahim, despite there being plenty of opportunity to do so. It was clear that, despite Scott and Kyle being hired by Mr. Rahim to do some work, they had become quite friendly throughout the course of the day. The three ate together, drank together, swam in Mr. Rahim’s pool together, and talked about their personal lives. Surely, if Scott Shannon were concerned about Kyle Hazelton’s ability to drive, he would have shared that with Mr. Rahim and based on the evidence before me he did not. There is absolutely nothing to suggest that the issue of drinking and driving was forefront in Scott Shannon’s mind at the end of the work day. Accordingly, there is no evidentiary basis to conclude that Scott Shannon was concerned about Kyle Hazelton driving home after drinking.

[76] I am mindful of the comment heard by Mr. Oroth, the jogger, who testified that when Scott Shannon was in front of the truck he heard someone say something to the effect of “come out - let’s talk.” He said the tone of the speaker was not angry - but polite and firm. He is not sure exactly what was said or who said it.

[77] Even if I assume Scott Shannon was the speaker, given the tone of the words combined with the context of the day, I am not prepared to infer that minutes after leaving the residence, with a blood alcohol level of over 300, Scott suddenly became concerned about Kyle Hazelton’s ability to drive. In my view, such an inference is not available on the evidence before me.

[78] I have also turned my mind to the text message that Scott Shannon sent to Carl Grellette at 6:23 pm which said: “can stop by and give us a lift home from Sean’s.”

[79] The Crown argues that this is evidence of Scott’s concern about Kyle’s ability to drive home. The defence argues that Scott sent the message because he knew that Sean Rahim and Carl Grellette were friends and he wanted to keep the party going. Given the lack of context, I am at a loss as to why Scott Shannon sent that message. I am not prepared to adopt the inference of either Crown or defence, as both fall into the category of speculation and, as such, is impermissible.

[80] Moreover, I am not convinced on the evidence before me that Kyle Hazelton’s ability to drive on this occasion was impaired by alcohol. The only evidence I have about the consumption of alcohol is from Sean Rahim which in my view is highly questionable. He says that Kyle and Scott consumed 12 cans of Labatt’s Blue Beer between them. Later in his testimony he said that he gave them some of his own beer. Even if accepted, there is no reliable evidence to assist me with how much of that beer was actually consumed by Kyle Hazelton, especially in light of the agreed fact that Scott Shannon had a blood alcohol concentration in excess of 300 that afternoon. Given the magnitude of Mr. Rahim’s miscalculation in that regard his evidence has proven wholly unreliable.

[81] The fact that Detective Constable Elaschuk testified that she smelled alcohol on Kyle Hazelton when she spoke to him on July 19, 2013, is of no moment given that this was many hours after the incident. There is no dispute that Kyle Hazelton had consumed some alcohol on the day in question; as to the amount, given the absence of reliability of evidence on this point, I am unable to make any further finding of fact.

[82] As outlined above the Crown’s case suffers from a number of insurmountable difficulties which include:

• The frailties in the evidence of Alicia Laborde, the Crown’s key witness;
• The lack of reliable evidence regarding the interplay between Scott Shannon and Kyle Hazelton’s truck; and
• An absence of evidence regarding the interaction between Scott Shannon and Kyle Hazelton.

[83] As such and after a consideration of all of the evidence I find myself in a state of uncertainty as to what actually happened on July 18, 2013 that resulted in the death of Scott Shannon. I find myself very much left in a state of reasonable doubt and unable to find that Kyle Hazelton operated his vehicle in a dangerous manner or that his driving was a marked departure from what a reasonable person would do in the circumstances. I find that the Crown’s case has fallen short of the necessary proof beyond a reasonable doubt and that the evidence does not support a conviction for dangerous driving or criminal negligence causing death.

Failing to Stop

[84] Finally, I have turned my mind to the charge of failing to remain at the scene of an accident.

[85] To find Kyle Hazelton guilty of this offence, I must be satisfied beyond a reasonable doubt that he knew his vehicle had been involved in an accident. It is not enough for me to find that he should have or probably would have known. The Crown must satisfy me beyond a reasonable doubt that he knew that he had been involved in an accident.

[86] After a thorough review of the evidence, I am not convinced and here is why.

[87] The Crown argues that even if I find that Mr. Hazelton did not drive dangerously, he would have heard Scott Shannon make impact on the road as he was driving off.

[88] He points me to the evidence of Mr. Oroth and Ms. Laborde who both testified about the sounds they heard when Scott Shannon fell onto the roadway. They described the sound as loud and distinct. The Crown argues that if they heard it then so did Kyle Hazelton. I disagree. I find that Kyle Hazelton was in a vastly different circumstance than Mr. Oroth and Ms. Laborde. I find that the engine noise alone, as he accelerated away from the scene, would have impacted his ability to hear what was going on behind him. That is to say nothing of the unknown variables. I don’t know if his air conditioning was on. I don’t know if his radio was on. I don’t know if he put his window up as he was driving away.

[89] After a consideration of the totality of the evidence, I find myself left very much in reasonable doubt about whether Kyle Hazelton knew his vehicle had been involved in an accident.

Summary

[90] After a thorough review of the evidence, the case law, the submissions of counsel and for the reasons stated, I find that that Crown has not met its onus in this case. I find myself left very much in a state of reasonable doubt. Our law requires that Mr. Hazelton receive the benefit of that doubt. As said previously, it is not enough for me to think that Mr. Hazelton has likely or probably committed the offences that he is charged with. I must be satisfied beyond a reasonable doubt of his guilt. I am not.

[91] Accordingly Mr. Hazelton will be found not guilty on all three counts.

K.P. Wright, J. Released: April 25, 2016