Her Majesty the Queen v Richard Scott Gamble and David Paul Gregory, 2016 ONSC 4418

COURT FILE NO.: CR 72/15 DATE: 2016 July 8

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: Her Majesty the Queen – and – Richard Scott Gamble and David Paul Gregory

COUNSEL: John Dibski, for the Crown Antin Jaremchuk, for Mr. Gamble John Renwick, for Mr. Gregory

HEARD: June 13, 14, 15, 17, 20, 21, 22, 23, 24 and July 8, 2016

The Honourable Justice R.J. Harper

The Indictment

[1] Richard Scott Gamble (Gamble) and David Paul Gregory (Gregory) were charged with the following counts:

1. Gamble and Gregory were charged with: On October 10, 2014, they possessed property To Wit a 2004 Chevrolet Silverado, Licence number AJI 11583 of a value exceeding $5,000.00 knowing that all of the property was obtained by the commission in Canada of an offence punishable by indictment, contrary to s. 345 (1) (a) of the Criminal Code of Canada (“CCC”).

Gamble was also charged with:

2. On October 10, 2014, in the City of Brantford, did by criminal negligence in the operation of a motor vehicle cause the death of Ashley Lerno contrary to s. 220 (b) of the CCC.

3. On October 10, 2014, at the County of Brant, having care and control of a motor vehicle, to wit: a Chevrolet Truck that was involved in an accident with another motor vehicle, operated by Ashley Lerno at Gilkison Road and Colborne Street, with the intent to escape civil or criminal liability, he failed to stop his motor vehicle and give his name and address and offer assistance to Ashley Lerno knowing that another person involved in the accident required assistance or was dead, contrary to s. 252 (1.3) of the CCC.

4. On October 10, 2014, at the County of Brant, he did operate a motor vehicle, a green Chevrolet truck while disqualified from doing so by reason of an order of the court pursuant to s. 259 (1) of the CCC, contrary to s. 259 (4) of the CCC.

5. On October 10, 2014, at the County of Brant, while operating a motor vehicle and being pursued by a peace officer operating a motor vehicle he did in order to evade the peace officer fail, without reasonable excuse, to stop his motor vehicle as soon as was reasonable in the circumstances and did operate the said motor vehicle in a manner dangerous to the public and thereby causing the death of Ashley Lerno contrary to s. 249.1(3) of the CCC.

[2] At the commencement of the trial, Gamble and Gregory made a re-election to be tried by Judge alone instead of a Jury.

The Facts

[3] While conducting a RIDE program, at the intersection of Concession 8 and Maple Avenue, in the County of Brant, in the evening of October 10, 2014, Ontario Provincial Police Officers Rodney Grubb and Dean Pottruff were joined by another Ontario Provincial Police Officer, Craig McMurtrie at or around 10:45 pm. Officers Grubb and Pottruff testified that at or around 11:27 pm, they observed two sets of headlights of motor vehicles that were approaching the RIDE program. Both vehicles slowed down and then made U-turns. All three of the above mentioned officers stated that they formed the impression that the turnaround vehicles were attempting to evade the RIDE program.

[4] The officers testified that turnarounds were not unusual. Typically a turnaround is trying to avoid the RIDE program for a number of reasons that include the person having been involved in other criminal activities or having consumed alcohol or drugs. Sometimes the RIDE program is mistaken for an emergency situation and the driver is attempting to avoid the emergency.

[5] It is normal procedure for officers to pursue the turnaround vehicle in order to determine the reasons for avoiding the RIDE program. In most cases, the turnaround vehicle stops as soon as they observe the police cruiser approaching with flashing lights. On this occasion, Officer Grubb immediately went to his cruiser and pursued the turnaround vehicles. Officer McMurtrie followed behind Officer Grubb in the pursuit. Officer Pottruff followed sometime later.

[6] Before testifying at this trial, both Officers Grubb and McMurtrie sought and were given the protection of the Canada Evidence Act, R.S.C. 1985, c. C-5, the Ontario Evidence Act, R.S.O. 1990, c. E.23 and the Charter of Rights and Freedoms. They had also been charged with criminal negligence in the operation of a motor vehicle causing the death of Ashley Lerno as a result of the events of October 10, 2014. Their case has been adjourned to an assignment court in the Superior Court of Ontario in July 2016. The charges relating to these two officers are not the subject of this trial.

The Events Following the Turnaround

[7] Officer Grubb proceeded in his police cruiser (Unit #6-174)) in a northerly direction on Concession 8 Road toward Bishopsgate Road. McMurtrie followed in his police cruiser (Unit #6-080). Grubb stated that he observed the turnaround vehicles now represented two sets of taillights and he pursued them. He observed the second of the two vehicles turn off the road into a private lane or drive. He continued to follow the other vehicle on Concession 8 Road toward Bishopsgate Road. Officer McMurtrie, who was following Officer Grubb, did not see a second vehicle.

[8] The officers’ cruisers are equipped with GPS tracking devices that can provide information about the location and speeds that a cruiser is travelling at while in operation. The Special Investigation Unit that investigated this police pursuit prepared a map showing the path of the pursuit on October 10, 2014. The map was reviewed by the officers for accuracy and it was generally adopted by Officers Grubb and McMurtrie as reasonably reflecting their speed throughout the pursuit that night. Richard Gamble, the alleged driver of one of the vehicles being pursued, testified in his own defence. He denied being the driver claiming he was a passenger in the back seat at all times, however, he also adopted the positioning of the vehicles and speeds that were reflected on the GPS map as fairly reflecting the path and the speeds during the pursuit.

[9] The speeds that are shown on the police cruisers GPS map tracking demonstrate that this pursuit was at extremely high speeds. From the point of the turnaround near Maple Avenue and Concession 8 Road through and to a turn off into a residential area at Oakhill Drive, the speeds of the fleeing vehicles and the police cruisers ranged from 119 km/h to 160 km/h. The speed limit in this area is 80 km/h. During this segment, the police were trying to catch up to the fleeing Chevrolet pickup truck. However, the truck continued to pull away.

[10] Officer Grubb testified that he got to within two car lengths of the truck. He stated that he could see that the vehicle that he was pursuing was a pickup truck. He got close enough to see the licence plate. He radioed the plate number into OPP dispatch. He also stated that he saw two silhouettes of persons in the pickup truck, one in the driver seat and one in the passenger seat. He also radioed that information into the police dispatch.

[11] The pursuit officers also had information during the course of the police pursuit that the pickup truck being pursued had been reported stolen. In addition, both officers, Grubb and McMurtrie testified that they were also aware that there had been a break-in the night before of a weapons store and that weapons had been stolen. With this information the pursuit continued.

[12] Officer Grubb testified that, while he was travelling on Colborne Street West, he attempted to pull alongside the truck. He stated that, at all times during the pursuit, his emergency lights were flashing and his siren was on. He stated that when he pulled alongside the truck, the truck made an abrupt swerve toward his cruiser. He perceived that the truck was attempting to run him off the road. He adjusted his direction to the point that he felt his driver side wheels hit the gravel portion of the wrong side of the road. He pulled back, at first, and then attempted to pull alongside the pickup truck a second time. Once again, the pickup truck tried to run him off the road. This time he sped up and got in front of the pickup truck.

[13] The attempts at running Officer Grubb’s cruiser off the road happened while on Colborne Street West between Highway 24 and Oakhill Drive. For a short period of time, Officer Grubb was in front of the pickup truck. Officer McMurtrie was immediately behind the pickup truck. The officers then attempted a “rolling block.” This is a procedure that is learned during OPP training. It often involves three cruisers but, in this case, there were only two cruisers to make the attempt in order to stop the truck.

[14] Once in front of the truck, Officer Grubb slowed down and Officer McMurtrie sped up. Officer Grubb stated that he got to within approximately one car length of the pickup truck. He testified that instead of the truck slowing down, it sped up and rammed the back of Grubb’s cruiser. He stated that the impact jolted him forward. Despite this jolt, Officer Grubb tried to slow down again to make the pickup truck stop. The truck proceeded to ram his cruiser again. This time, the truck was actually pushing his cruiser forward for a distance. Richard Gamble testified that it was the cruiser in front of him that slowed down and hit the truck and the cruiser behind also hit the truck. I will deal with this discrepancy later in these reasons.

[15] The next segment of the pursuit represents a rapid turn by the fleeing pickup truck onto Oakhill Drive and into a residential area for the balance of the pursuit. Gamble testified that it was the action of the police attempting the rolling block slow down and ramming from behind that caused the pickup truck to be directed onto Oakhill Drive. I reject Richard Gamble’s evidence in this regard. During the pursuit in the residential area, both cruisers were pursuing the pickup truck, with Officer McMurtrie being followed by Officer Grubb.

[16] Jolene Welton testified that she was driving on Colborne Street West on October 10, 2014 shortly after 11:30 pm. She saw a vehicle being pursued by police with sirens and flashing lights on. She pulled over to the side of the road on Colborne Street West and stopped her vehicle before Oakhill Drive. She could see the pickup truck “going back and forth. It looked like he did not want the cops to pass him.” She also stated that as the truck was approaching the intersection of Colborne Street West and Oakhill Drive, it was almost like a last minute decision he took to “turn the corner real quick.”

[17] Ms. Welton stated that when the truck turned the corner it was going fast enough that it looked like it was on two wheels. She also stated that when the truck turned on to Oakhill Drive, one of cruisers had to turn around on Colborne to follow the pursuit. Her evidence corroborates the evidence of Officers Grubb and McMurtrie with respect to the pickup truck swerving to avoid being overtaken by the cruiser and the pickup truck turning rapidly onto Oakville.

[18] I will not detail every turn on the numerous residential streets the pickup truck and the pursuing cruisers took. It is sufficient, for these reasons, to state that the pickup truck went off road at least three times. I find every off road incident was as a result of attempting to flee the police. On the first occasion, on Oakhill Drive, the pickup truck was travelling so fast it could not negotiate the turn and went airborne onto a residence’s lawn. Deep gouges of the truck were shown in photographic evidence. The truck then proceeded to a dead end street and, instead of stopping, it went through spacing of barriers and proceeded off road to a one-way street. The fleeing truck then proceeded the wrong way up a one-way street. The last off road incident occurred in what was described as the Lorne Park area. Once again, deep truck wheel tracks could be seen in the photographic evidence of this area.

[19] The speeds in the residential area ranged from 25 km/h to 50 km/h on the off road portions, to 69 km/h to 151 km/h on the residential streets. All of the posted speeds in the residential area were 50 km/h.

[20] The pickup truck came out of the Lorne Park area onto Gilkison Street. It then went around two or three streets until it came out onto Gilkison Street. Officer McMurtrie stated that when he turned onto Gilkison Street, he saw the fleeing vehicle accelerate rapidly to and through the intersection of Colborne Street and Gilkison Street. The fleeing vehicle then “vaulted in the air.” At this point, Officer McMurtrie knew a collision had taken place.

[21] Officer Grubb was attempting to locate and catch up to the fleeing pickup and the McMurtrie pursuing cruiser. Officer Grubb finally came within close sight of the pickup truck as it was turning onto Gilkison Street and started to accelerate to the intersection of Colborne Street and Gilkison Street. At that point, Officer Grubb testified that he almost collided with the pickup truck.

[22] Counsel for Richard Gamble conceded that the manner in which the pickup truck was driven, as described above, would establish, beyond a reasonable doubt, that the driving amounted to criminal negligence causing death. It was also conceded that Ashley Lerno, the driver of the Mercury that the truck collided with, died as a result of injuries she received from the collision.

[23] I find that the fleeing Chevrolet pickup truck was operated in a manner, from the start of the pursuit until the collision, that was extremely reckless and completely without regard to the safety of anyone along the pursuit route. I find that the method of driving demonstrates that the sole intent of the driver of the vehicle was to escape from the police regardless of the consequences. That motivation persisted throughout the pursuit right up until the collision occurred.

[24] Not only did both Officers Grubb and McMurtrie testify that the pickup truck went through a red light at the intersection of Colborne Street and Gilkison Street, it did so at an extremely high rate of speed as it accelerated on Gilkison Street in order to flee from the pursuing police. The collision re-constructionist, Officer Black, testified that he performed two calculations in order to determine the speeds and positioning of the pickup truck and the car it collided with. One calculation was from laser measurements in conjunction with the details he observed with tire marks and gouges in the pavement. In addition, he reviewed all of the data that came from the airbag computer that provides vehicle speed information. This data was also compared to SIU collision reports from their investigation. All calculations were within a similar range and showed that the pickup truck was travelling at a speed of approximately 80 km/h in a 40 km/h zone at the point of collision. The car that the pickup truck collided with was travelling at a speed of approximately 56 km/h in a 50 km/h zone.

[25] There was further confirmation of the pickup truck going through a red light at a high rate of speed as it was captured on the surveillance video. These facts are reflected in Officer Black’s Collision Re-constructionist Report filed in evidence. The report states at p. 44:

In conclusion it is evident that the driver of the Chevrolet in an attempt to evade apprehension by the police operated the vehicle in a manner that ultimately caused the collision. As noted in the calculations, even the approximate low impact speed of the Chevrolet is still 25km/h above the posted speed limit. This stretch of road (Gilkison St.) near the intersection is primarily residential with two large apartment buildings occupied mostly by seniors. The surveillance video showed the Mercury had the right of way and that the driver of the Chevrolet chose to enter the intersection against the red light signal.

[26] I find that the manner in which the driver of the pickup truck operated that vehicle was purposeful; it was reckless in the extreme and willfully blind of any consequence of such operation. The consequence in this case was the death of Ashley Lerno.

The Driver of the Pickup Truck

[27] The main contested issue relative to the driver of the pickup truck is the charges of criminal negligence causing death; driving while disqualified; and having care and control of a motor vehicle that was involved in an accident with another vehicle operated by Ashley Lerno, at Gilkison Street and Colborne Street with intent to escape civil or criminal liability, and failing to stop his motor vehicle, give his name and address and offer assistance to Ashley Lerno, knowing that another person involved in the accident required assistance or was dead is:

Whether or not Richard Gamble was the driver operator of the Chevrolet pickup truck that collided with the car driven by Ashley Lerno. He denies being the driver of that pickup truck on October 10, 2014.

[28] Richard Gamble testified that he was a passenger in the Chevrolet pickup that was involved in the collision on October 10, 2014 at the intersection of Colborne Street and Gilkison Street in the City of Brantford.

[29] He testified that he met up with his friend David Gregory at Mr. Gregory’s home at or about 9 or 9:30 pm. Another person, who was known to Mr. Gamble as “Shane,” came to Mr. Gregory’s house that night. Mr. Gamble claimed that Shane was a friend of Mr. Gregory. Mr. Gamble stated that Shane came to Mr. Gregory’s house in order to check out a possible venture that would result in the three of them securing tobacco in order to sell it.

[30] According to Mr. Gamble, it had been prearranged between Mr. Gregory, Mr. Gamble and Shane to drive to a rural area in order to check out this possible venture. Mr. Gamble stated that the three of them got into the pickup truck that Shane drove to Mr. Gregory’s house that night. According to Mr. Gamble, he got into the back seat, and Mr. Gregory got into the front passenger seat. Mr. Gamble claimed that Shane was the driver of this Chevrolet pickup truck from that point until the collision.

[31] Mr. Gamble stated that they drove to a Tim Horton’s located at Mt. Pleasant and Colborne Streets in Brantford, got out of the truck, and went into the Tim Horton’s to get coffees. They then intended to proceed to the rural area where the tobacco was located. However, at or near the intersection of Concession 8 Road and Maple Avenue, the driver of the truck slowed down and turned around. Mr. Gamble stated that he did not see a RIDE program. However, Shane, who was allegedly driving, stated that there was a RIDE program and he needed to turn around. Mr. Gamble stated that once they turned around “we were off” and the police were chasing them. He claimed that Shane told them that he had warrants for his arrest and that was the reason he was fleeing. Mr. Gamble also claimed that both he and Mr. Gregory told Shane a few times to pull over but he just kept going.

[32] Mr. Gamble was shown the SIU GPS map. He generally agreed that it fairly represented the path and the speeds of the pursuit from the start of the turnaround until the collision.

[33] Mr. Gamble contended that it was the police who hit the truck when they were attempting a rolling block and it was the police who caused the truck to rapidly swerve onto Oakhill Drive at such a speed that it forced the truck off the road and to become airborne onto a residence’s lawn.

[34] Mr. Gamble stated that he was knocked into the front seat middle console area during that off road episode, and was then flung back to the back seat area. He claimed that when the collision occurred he was seated in the back seat. He first testified that he only remembered a bang and thought the police were shooting at them and then he woke up in someone’s backyard. His testimony changed when the Crown was cross-examining him. He then stated that he recalled being thrown out the back window of the truck and he ran and jumped over two fences before passing out in a backyard.

The Circumstances at the Scene of the Collision

[35] Officer McMurtrie stated that he arrived at the collision intersection 11 seconds after the collision and that Officer Grubb arrived three seconds later. He stated that he calculated those times from the SIU video compilation. The timing on the video corroborates the arrival times. Officer McMurtrie stated that he stopped at the larger painted white line representing the stopping line on the pavement at the intersection and he could see that Officer Grubb pulled his cruiser up closer to the collision site inside the intersection. Both cruisers were facing the collision site. Although the street lights were knocked out by the collision, both cruisers’ lights were on and facing the collision site. This testimony was corroborated by photographic evidence.

[36] Officer McMurtrie stated that he proceeded toward the collided vehicles. The pickup truck was on its side with the driver’s side facing upward. The passenger side was facing down onto the road with a small space between the passenger side door and the road.

[37] The car driven by Ashley Lerno was pushed up against the outside wall of the restaurant on the corner of Gilkison Street and Colborne Street with very little space between the car and the pickup truck. Both of the above descriptions of the positioning of the cruisers and the collided vehicles were also supported by photographic evidence and the evidence of Officers Grubb and McMurtrie. Photographs of the collision scene taken post-collision together with the scale diagram of the re-constructionist report demonstrate that there is little to no space between the pickup truck on its side and the Mercury vehicle it collided with that was pinned up against the restaurant outer wall.

[38] The photographs also demonstrate that Officer Grubb’s cruiser was parked between the crosswalk within a couple of feet from the sidewalk facing the collision. The positioning of the collided vehicles and the police cruisers, and the testimony of the police officers relating to the positioning are significant. This evidence must be considered when determining the number of persons who exited the pickup truck post-collision.

Observations of Witnesses at the Collision Scene

[39] The following witnesses gave evidence about their observations of the events at the collision scene that included their vantage point and timelines:

1. Officer McMurtrie
2. Officer Grubb
3. Sonya Parasram
4. Liam Bielawski
5. Michael Harris
6. Zachery Krug
7. Richard Gamble

Officer McMurtrie

[40] Officer McMurtrie stated that very shortly after he stopped his cruiser, he first observed a person climbing out and up on the driver’s side of the pickup truck. He then saw a person crawling out of the passenger door at the bottom of the pickup truck. He observed both persons exiting the pickup truck through his cruiser’s windshield that was facing the pickup truck.

[41] Officer McMurtrie stated that he got out of his cruiser and made his way to the truck. The first person out of the pickup truck from the driver’s side at the top started to run from the collision scene. He ran north from the collision site and then northwest behind the restaurant on the corner. At first, Officer McMurtrie started to run after him but he became concerned for his partner’s safety. Officer McMurtrie’s movements can be seen on the video and the still photos taken from the video. The video and still photos corroborate Officer McMurtrie’s testimony of his immediate movements as he departed his cruiser. He could see that there was massive damage to the car against the restaurant and he could hear his partner yelling commands to the second person who had exited the pickup truck from the bottom.

[42] Both Officer Grubb and McMurtrie had their guns drawn. According to Officer Grubb, Brantford police and a number of emergency vehicles arrived at the collision site within one minute of the arrest of the person who exited the front passenger side, Mr. Gregory. That arrest took place within a few feet from the pickup truck.

Officer Grubb

[43] Officer Grubb stated that he was proceeding on Gilkison Street attempting to locate the fleeing pickup truck and Officer McMurtrie. He was almost hit by the pickup truck when he was making a left turn from Richardson onto Gilkison. The pickup truck then accelerated toward the intersection of Gilkison and Colborne Streets. He saw the truck flip in the air as it collided with another vehicle.

[44] Officer Grubb stated that he proceeded ahead of Officer McMurtrie’s cruiser that was stopped on Gilkison Street at the beginning of the intersection. He stated that he stopped his cruiser facing the collision only a few feet from the collision. The pickup truck’s front was facing him and it was on its side with the driver’s door facing upward.

[45] He stated that he saw a gray car pinned against the red building. The car had heavy damage to the driver’s side.

[46] Officer Grubb testified that he saw a male crawl out of the pickup truck from the top driver’s side that was facing the sky. That person got out and ran to the north side of Gilkison Street and into the dark out of his sight.

[47] He saw Officer McMurtrie come out of his cruiser and proceed to the side of his cruiser and then over to the back where the gray car was pinned against the building. As Officer McMurtrie went toward the person who came out of the driver side, Office Grubb stated that he saw another person “squirming” out of the bottom “as if he was stuck” from the passenger side of the pickup truck. That person was wearing a gray hoody over his head.

[48] Officer Grubb had drawn his gun and was yelling at that person to get down on the ground after he got out of the truck. Officer Grubb stated that that person was agitated and was bouncing around between the truck and the restaurant. There was not a lot of room between the pickup truck and the restaurant. It appeared, at one point, as if the person who got out of the pickup from the bottom may be trying to run. However he looked more agitated and Officer Grubb stated that he was concerned that the person was injured. That person finally got on the ground and Officer Grubb put him in handcuffs and arrested him.

[49] Officer Grubb stated that all of the above events did not take long. He thought that it only took maybe a minute.

[50] Counsel for Mr. Gregory conceded that the person who exited the pickup truck from the bottom and was arrested was Mr. Gregory.

[51] Both Officer Grubb and Officer McMurtrie stated that they only saw two persons exiting the pickup truck. Although in cross-examination, Officer McMurtrie agreed to the suggestion that it was possible someone else may have exited, he insisted that they only saw two people exiting the vehicle. Both officers stated that, although this was an unusually traumatic and highly charged event, they were vigilant about their surroundings. Their vigilance was driven by the extreme features of the pursuit and their knowledge that someone had robbed a weapons store the night before.

[52] Officer McMurtrie stated that he was later taken to the hospital for a medical checkup due to high blood pressure. He indicated that he had never been diagnosed with high blood pressure before. Both Officers McMurtrie and Grubb insisted that only two persons came out of that truck before many other police and emergency vehicles arrived at the scene.

Sonya Parasram

[53] Ms. Parasram was a young mother who had her young child in the back seat of her car. She was driving on Colborne Street toward the intersection of Colborne and Gilkison. In her direct testimony she stated that the car involved in the collision was directly in front of her. However, when shown the video of the crash from one of the surveillance cameras she saw that the car involved in the collision was coming from the opposite direction on Colborne toward the intersection of Gilkison. Nevertheless, she was right at the intersection when the collision took place.

[54] She stated that she saw the collision of the pickup and the car. She saw the pickup go through the red light and hit the car. She immediately proceeded though the intersection, and made a left turn into a parking lot facing the collided vehicles with her headlights on. She stated that she saw a man running from the pickup truck. She did not see from what part of the pickup truck that he came out of. She saw him run into the dark area to the north and then run left behind the restaurant. She then saw a second person that the police were yelling at to get on the ground. She stated that she did not see from where this person exited the pickup. She saw the second person being arrested between the nose of the pickup truck and the car against the restaurant building.

[55] Ms. Parasram stated that by the time the second person was arrested, there were lots of other police that had arrived along with emergency vehicles, pedestrians and other on lookers. She described the scene, at that point, as having a lot of confusion. Ms. Parasram took two still photos and a short video from her phone showing her vantage point.

[56] A review of the surveillance videos that captured the collision and the video and photos taken by Ms. Parasram corroborated her evidence that she immediately proceeded through the intersection and turned to the left off of Colborne into a parking lot. The videos demonstrated that she had her car lights illuminating the collision site. They also demonstrated that she was in a vantage point to clearly observe the person running and the person getting arrested.

[57] Ms. Parasram only saw two persons exiting on the video.

Liam Bielawski

[58] Mr. Bielawski testified that he was close to the intersection when the collision occurred. He was a passenger in a car that was proceeding on Colborne Street to the intersection of Gilkison. He did not hear a crash as the music in his vehicle was too loud. However, he saw a lot of debris. He then saw a pickup truck that was flipped on its side. He testified that the SUV he was driving in stopped close to the intersection. When he saw the video of the collision he agreed that the SUV he was in stopped much farther away from the intersection then he had remembered.

[59] He stated that he saw two people crawl out from under the truck and one fled and the other one was arrested. He saw two OPP cars on Gilkison facing north. He stated that the OPP arrived about 15 seconds after the accident. He saw the police get out of their cruisers and he saw their guns raised.

[60] Mr. Bielawski testified that he could not see anyone in the truck but he could see them “army crawl” out of the bottom part of the truck on their stomachs. He also stated that he could not see the part of the truck they crawled out of but it looked like the passenger side.

[61] Mr. Bielawski only saw two persons exit the truck.

Michael Harris

[62] Michael Harris was 14 years old at the time of his testimony. He would have been 12 or 13 at the time of the collision on October 10, 2014. He appeared to be a young 14-year-old. He had been riding his bike and coming from a skate park near the Brantford Casino. He stated that when he and his friend, Zachery Krug, heard the sirens they proceeded to the intersection where the crash took place. He stated that he crossed the walking bridge to get to the crash. When he got there he saw a door smashed in on the car and that all he remembered was there were a lot of people surrounding the collision site and that surprised him.

[63] He testified that when he first got there he saw a truck on its side and the truck was leaning on the passenger side door. When asked what else he could remember he stated “I can’t remember anything that happened. After that I went home.” The Crown pressed him further about what he could remember. He stated that he saw one guy run away and they caught him. He stated that it was dark and he could not see the guy other than he ran north toward Cockshutt Park. He stated that when he was arrested he came back and although he did not get a look at him, it was the same person that he saw running away.

[64] I find that this witness was inconsistent about details that he could remember. It is not possible to determine what this witness saw himself and whether he even had a vantage point to make any relevant observations. I give the testimony of this witness no weight in my decision.

Zachery Krug

[65] Zachery Krug is the friend who was with Michael Harris. He was 16 years old at the time of his testimony. I find the same difficulties with his testimony as I did with his friend, Mr. Harris. He was vague and inconsistent in his answers about how many people he saw and whether Mr. Harris talked to him about this case. He confirmed that when he got to the collision site he saw a truck on its side and a car up against the building. He remembers cruisers pulling up and an ambulance. He stated that he did not see anyone run away but he did see the police return with someone who had run away. I give Mr. Krug’s evidence no weight in my decision.

Legal Considerations, Burden of Proof and Credibility

[66] The starting point for my analysis with respect to whether or not the Crown has met its burden of proof on the charges that are before the court is the Supreme Court of Canada decision in R. v. W. (D.), [1991] 1 S.C.R. 742.

[67] The Supreme Court Canada decision in W. (D.) is the seminal authority on defining the burden of proof in criminal trials. It sets out a three stage analysis to be included in jury instructions, and while the steps are familiar and often recited in decisions, they are worth restating as it would, in my view, have been helpful to apply them in the circumstances of this case:

[68] First, if the trial judge believed the evidence of the appellant, he must be acquitted.

[69] Second, if the trial judge did not believe the evidence of the appellant, but was left in reasonable doubt by it, then again, he must be acquitted.

[70] Third, even if the trial judge was not left in doubt by the evidence of the appellant, he was then required to decide whether, on the basis of the evidence he did accept, he was convinced beyond a reasonable doubt by that evidence of the guilt of the appellant.

[71] Part of the analysis requires an assessment of credibility of the witnesses who testified on a material issue. However, in criminal matters I must be guided by considerations that are aptly set out in R. v. V.Y., 2010 ONCA 544, [2010] O.J. NO. 3336. The Ontario Court of Appeal, commencing at para. 45, stated as follows:

[45] The trial judge was alive to these concerns. He was fully aware that he could only convict the appellant if he was “satisfied beyond a reasonable doubt the complaints are true.” In this regard, he recognized that “[R]easonable doubt applies to the assessment of credibility” and he correctly instructed himself on the presumption of innocence and the principles in R. v. W. (D.) (1991), [1991] 1 S.C.R. 742, 63 C.C.C. (3d) 397 (S.C.C.). [46] The trial judge further appreciated that it was a delicate task assessing credibility in a case “such as this one”, “particularly where the critical evidence is found in the competing versions from the complainant and the accused.” To that end, he instructed himself as follows: It is critical to understand that credibility is fashioned from the evidence given. The court presumes nothing about either principal save and except for the presumption of innocence to which the accused is entitled. In assessing credibility, the court has to ask whether the evidence given is internally consistent and logical. Does it accord with common sense? Is it compatible with the other evidence that forms part of the events as described?

[72] At para 9 of that case the Court stated:

[9] The three stage analysis in W.(D.) is frequently cited for the proposition that a criminal trial is not a contest of credibility between the accused and the complainant; that disbelieving the accused does not lead necessarily to conviction. As Fish J. describes it at para. 25 of C.L.Y., “[t]he very purpose of adhering to the procedure set out in W.(D.) is to foreclose an inadvertent shifting of the burden of proof where the complainant and the accused have both testified and the outcome of the trial turns on their credibility as witnesses.” (emphasis in the original) [10] In C.L.Y., the Supreme Court revisited the W.(D.) analysis, and was divided on how strictly it should be applied. In that case, the trial judge had reviewed the evidence of the complainant and concluded that she believed it before considering the evidence of the accused. [11] Writing in dissent, Fish J. found that the trial judge had committed a reviewable error. In his view, the trial judge had found the accused guilty before even evaluating his evidence, and thus shifted the burden to the accused. As he stated at para. 30 of his reasons: Unfortunately, the appellant’s presumption of innocence had by that point been displaced by a presumption – indeed, a finding – of guilt. The trial judge could hardly believe both the appellant and the complainant. Before even considering the appellant’s evidence, she had already concluded that she believed the complainant. In effect, the trial judge had thus decided to convict the appellant unless his evidence persuaded her to do otherwise. (Emphasis in the original) [12] In contrast, the majority stressed that W.(D.) need not be “religiously followed” and saw, “no blue print for error in the trial judge’s failure to observe W.(D.) as a catechism”: paras. 7 and 11. Central to the majority’s reasoning was Abella J.’s conclusion at para. 12 that the mere order in which the trial judge had reviewed the evidence and stated her conclusions did not, of necessity, create a shift in the burden of proof: The trial judge’s reasons reveal that she understood that a finding that the [complainant] was credible did not mean that the onus shifted to the accused to show that he was not guilty. I find it difficult to see how the sequence in which the trial judge set out her findings of credibility can be said to undermine her articulated and correct statement of the law, or demonstrate that she lost sight of a paramount legal principle like reasonable doubt. [13] Significantly both the majority and dissent agreed that it would be an error for a trial judge to find that because a complainant was credible, the onus shifts to the accused to disprove his guilt. What separated the majority and dissent was the majority’s finding that there was nothing to suggest that this error had been committed, while the dissent found that it had been and that following the structure of W.(D.) would have guarded against such error: per Fish J. at para. 31. [14] In considering issues around the W.(D.) analysis, trial judges are presumed to know the law regarding the presumption of innocence and the burden of proof. They are not required to explain in detail the process they followed to reach a verdict; they only need to give reasons that the parties can understand and that permit appellate review: R. v. Sheppard, [2002] 1 S.C.R. 869, 2002 SCC 26. [15] I would add that it is also essential to keep in mind the comments of Fish J. at para. 33 in C.L.Y.: “[J]udges may know the law, yet err in its application; they may know the facts, yet make findings of credibility unsupported by the record. What matters in either instance is the substance and not the form of the decision.”

[73] In these reasons for judgment I am guided by the applicable law as set out above and as it should be applied to the facts as I will find them. I emphasise the presumption of innocence and the burden of proof that the Crown has throughout these proceedings. I must look to all of the evidence in order to determine if the Crown has met its burden of proof beyond a reasonable doubt.

The Turnaround Vehicles

[74] I find that both Officer Pottruff and Officer Grubb saw two vehicles slow down and turn around at or near the intersection of Concession 8 Road and Maple Avenue at approximately 11:27 p.m. on October 10, 2014. Although Officer McMurtrie did not observe two vehicles, that does not diminish, in my view, the evidence of Officers Grubb and Pottruff in this regard. I consider their evidence, together with the evidence on October 11, 2014 that the police located an abandoned stolen pickup truck at or near the location that the two officers stated that one of the vehicles turned into a private lane or drive at the outset to the pursuit on October 10, 2014.

The Forensic Evidence

[75] Officer Bauer was responsible for the collection of the forensic evidence at the collision site. He worked in the Forensic Identification section of the Brantford Police Services and had been working there since 2009. He received training at the Ontario Police College and received his designation in forensic identification in 2009.

[76] Part of Officer Bauer’s task was to photograph the collision scene and collect samples of evidence. Officer Bauer took photos of the driver’s side airbag, among other photos. He also swabbed a certain portion of the airbag, representing an area of approximately 30 cm in the centre of the airbag. This is one of the pieces of evidence he felt was necessary in order to make an effort at identifying the driver of the pickup truck. Once he swabbed that portion of the airbag he collected the sample and packaged it. He then cut out the airbag and placed it in an evidence bag.

[77] Officer Bauer also took swabs of stains that appeared to be blood in certain areas of the passenger’s side of the vehicle. He collected and packaged that evidence.

[78] Officer Bauer also observed hairs located on the driver’s side inside roof portion of the vehicle. Some of the hairs collected were within ceiling fibers in a torn part of the front driver’s side ceiling that had partially fallen.

[79] Another significant item observed and collected by Officer Bauer was a camouflage baseball cap that was located on the driver’s side seat and middle console area of the truck. This cap also had hairs that were collected.

[80] Officer Bauer stated that he communicates with a consulting team assigned to this case at the Brantford Police Services with respect to giving input to what items to collect and package. Once the items are collected and secured, a list is prepared and submitted to the Centre of Forensic Sciences (“Centre”). This submission is reviewed by the Centre with a view to accepting or rejecting items that may or may not be suitable for biological and other testing.

[81] In addition to the above-mentioned items collected, Officer Bauer also observed and collected a pair of gloves, a water bottle and a cigarette butt from the floor of the front section of the truck.

[82] The list of items were accepted and brought to the Centre of Forensic Sciences.

[83] I found Officer Bauer to be very thorough and professional in the conduct of his assigned task. He stated that his objective was to ascertain who the driver of the vehicle was and any other occupants of the vehicle. That is why he chose to swab a section of the airbag and blood stains. In addition, he felt that the hair that he found given its location would assist with determining the positioning of the occupants.

[84] Officer Bauer did not take fingerprints from the steering wheel, the gear shift and the key in the ignition. He stated that he felt that the items that he had were sufficient. He also commented that the gear shift had an oily substance on it that may very well prevent prints from showing up. He commented that the steering wheel does not have the configuration and the consistency that is optimal for prints. He considered the issue and felt that obtaining prints from the steering wheel, gear shift and key would not be determinative of who was driving as much as potential DNA from the air bag and hair samples would be.

[85] Officer Bauer was asked in cross-examination whether he took the gas pedal or brake pedal in order to determine whether there might be any transfer evidence from a shoe. He stated that he did not. He also added that he has never done that. He subsequently attended much later where the truck had been stored. At that time, he observed the truck to be in the same condition it had been when he first observed it. He took further photos and more specifically photos of the back seat area. At that time, he also collected the gas pedal and the brake pedal. However, no evidence was obtained from an examination of those items.

[86] Officer Bauer also examined and took photos of the rear portion of the truck. He observed that there was no evidence of any impressions or other damage that he would have expected to find if someone was seated in the back seat and was subjected to the speed and force of that collision.

The Centre of Forensic Science

[87] Margaret Henry has been the head of the biology section of the Centre of Forensic Science since 1997. She has been qualified many times to testify as an expert witness with respect to identification of bodily fluids and technical aspects of DNA. I also qualified her as an expert in those areas.

[88] Ms. Henry stated that the Centre is an independent body and submissions for testing and analysis can be made by anyone. She described the process in order to make a submission to the Centre as requiring a submission form to be sent to the Centre to be reviewed by a scientific advisor. The advisor makes a determination of what items would be accepted and what potential hypothesis might be reasonable.

[89] In this case the Centre accepted, tested and reviewed the following items:

1. Driver seat airbag
2. Blood swab from B Pillar on passenger’s side of the vehicle
3. Blood swab from head rest on passenger’s side of the vehicle
4. Blood swab from B Pillar
5. Hair from roof of vehicle driver’s side
6. Work gloves
7. Camouflage baseball cap
8. Cigarette butt

Forensic Conclusions

[90] A summary of Ms. Henry’s findings are:

1. The driver seat airbag contained the DNA of Mr. Gamble
2. The hair found in the ripped portion of the driver’s side ceiling contained the DNA of Mr. Gamble
3. The camouflage baseball cap contained hair that contained the DNA of Mr. Gamble
4. The blood swabs on the passenger’s side all contained the DNA of Mr. Gregory
5. The cigarette butt contained the DNA of Mr. Tatlock who was the registered owner of the Chevrolet pickup truck

[91] None of the DNA conclusions were contested. Mr. Gamble’s counsel attempted to limit any inferences that may be found as a result of the DNA findings by suggesting, among other things, that the airbag DNA yielded a very small amount of DNA, that being nine nanograms. Ms. Henry stated that the amount of DNA found is significant for the purposes of testing. The lowest target limit for analysis is one nanogram. This sample, at nine nanograms, was sufficient to be analysed.

[92] Ms. Henry indicated that it was not possible to determine how the airbag was touched to produce that amount of DNA. However, she stated that it is not likely that a gentle touch would produce that amount.

[93] Counsel for Mr. Gamble also suggested to Ms. Henry that the DNA found in the 30 cm area in the centre of the airbag could be transferred from either bodily fluids flung from movement due to the crash or from collecting and folding the air bag. Ms. Henry conceded that may have been possible. However, the DNA from the hair samples from the ceiling would rule out other possibilities as the hair in the ceiling was meshed in with the ripped fiber in the driver side ceiling.

[94] I find it significant that no other DNA profiles were detected on the airbag except for Mr. Gamble’s. In addition, his DNA was located on the hair in the ripped fabric on the tear in the ceiling on the driver’s side and in the camouflaged baseball cap found on the driver’s side near the middle console.

[95] The agreed statement of facts conceded that all of the blood swabs yielded the DNA of Mr. Gregory.

The Post Offence Conduct and Statements

[96] Mr. Gamble was found in a backyard behind the restaurant very near the corner of the collision site. He was found by the canine and emergency response team. He was found curled up in the corner of that yard in an almost fetal position. Officer Pitt, who was a member of the emergency response team, stated that he approached the suspect and yelled at him to get on the ground. The suspect stated “you got me, you got me.” At that point he was arrested and cautioned that he did not have to speak to anyone, he had a right to a lawyer and if he did say anything it would be used against him.

[97] Approximately one hour later, Mr. Gamble spontaneously and out of the blue asked Officer Deschamp, who had escorted him to a lock-up in Paris, Ontario, if Shane, who was allegedly driving the pickup truck, was okay. Officer Deschamp expressed concern that if there was a third person involved, the canine unit did not find another person and, if that was the case, he was concerned for the safety of that alleged person given the nature of the crash. Officer Deschamp got instructions from his supervisor to get more of a description of the alleged person. Mr. Gamble stated that he did not know him as he was a friend of a friend. He then stated that his name might be Shane Lyttleman or Leahman.

[98] That information was passed on to Officer Deschamp’s superiors.

[99] On October 17, 2014, Mr. Gamble was interviewed by Officer Nelson DaCosta and Officer Russell Herriott. Both officers had previously worked in Corrections and knew Mr. Gamble in their former capacity when he had been previously incarcerated. By October 17, 2014, Ashley Lerno had died as a result of the collision and the two officers had to read to Mr. Gamble the increased charges against him as a result of her death. The audio of that interchange was filed as an exhibit.

[100] I had the assistance of a transcription of the audio. However, the transcript is not evidence. I listened to the audio a number of times and I could hear Mr. Gamble stating “I don’t want to talk to you guys.” Officer Herriott acknowledged that he did not have to talk to them but they had to read him something. Officer DaCosta then asked Mr. Gamble “you good?” Mr Gamble stated “no I’m not fuckin good, I just killed a fuckin kid, what are you talking about? I’m not fuckin good.”

[101] I want to make it clear in these reasons that I am considering this evidence as one piece of the relevant evidence together with all of the other evidence. I have also considered the suggestion of counsel for Mr. Gamble that this utterance by Mr. Gamble could also be explained as a statement that came from his shock about the death and dismay that he was being charged with this serious offence. Given the timing of the statement, the voice inflection and the actual words spoken I reject the suggestion by counsel for Mr. Gamble that the utterance was a mere expression of shock and dismay about the increased charges.

[102] I reiterate that not one piece of evidence switches the onus of proof on the Crown at any point in the trial. The Crown carries this high onus of proof beyond a reasonable doubt at all times.

The Alleged Other Driver, Straw Man or Real Person?

[103] Once the information was relayed to Officer Gracey, who was the officer in charge of the investigation, he embarked on certain searches. He testified that he had been trained and certified in certain advanced technology investigative techniques. Not all OPP can use this technology. Not only must you be trained but must also have been assigned special equipment.

[104] Officer Gracey testified that he was cautious about Mr. Gamble’s claim that there was a third person involved and that that person was the driver that night. Part of his caution was that he was aware that Mr. Gamble had blamed others in the past. Nevertheless, Officer Gracey sought to investigate this claim to rule out that someone else was the driver.

[105] Officer Gracey did numerous internet searches, some of which involve covert searching of names that appeared on both Mr. Gamble and Mr. Gregory’s social media sites. He stated that he had the ability to search those listed as friend of the accused and also “go down certain rabbit holes that others may not be able to go.” Much of that was due to training and some was due to the special equipment that he had the use of.

[106] Office Gracey used searches that would yield results that may be even closely related to the names inputted. He searched for Shane Lyttleman, Littleman, Shane Leahman or Leaman. In addition, he made inquiries of administrators with the City of Brantford with respect to persons who may be residing on the street that Mr. Gamble stated was where he thought this Shane lived. He made other searches from social services and none of his searches yielded any results.

[107] Counsel for Mr. Gamble suggested that the searches were not good enough. He suggested that the police did not expeditiously follow up on names that were similar that came up from the internet searches. He also suggested that they should have conducted a door to door canvass of the residence on the street that Mr. Gamble stated that Shane may have lived on.

[108] I reject those suggestions of counsel for Mr. Gamble. Office Gracey was working with the data that was provided from time to time by Mr. Gamble or his representative. Mr. Gamble never had a duty to make any statements to the police. He chose to make certain statements and, in my view, the statements that he did make were vague. I find the police investigation, in this regard, was thorough with what they had to work with.

[109] I wish to make it clear that I am guided by the principles of law that relate to a person’s right to remain silent. In R. v. L. (W.), 2015 ONCA 37, [2015] O.J. No. 275, the Ontario Court of Appeal reviewed such legal principles commencing at para. 18:

18 Certain principles that govern the right of an accused to remain silent post-arrest are in play in this appeal. Deeply embedded in our law is the principle that an accused person has the right to remain silent at the investigative stage of a prosecution as well as at trial: R. v. Chambers, [1990] 2 S.C.R. 1293, 59 C.C.C. (3d) 321 (S.C.C.), at para. 50. Accordingly, evidence of pre-trial silence cannot be used as positive evidence to infer guilt: R. v. Creighton, [1995] 1 S.C.R. 858, 96 C.C.C. (3d) 481 (S.C.C.), at para. 38. While a trier of fact may reject an accused's explanation as not being believable, and use that finding in assessing credibility, a trier of fact is prohibited from using the silence of an accused as a basis for drawing an adverse inference as to credibility: R. v. Palmer, 2008 ONCA 797 (Ont. C.A.), at para. 9. 19 Further, the constitutional right to remain silent is not extinguished when an accused chooses to speak to an officer with respect to some matters, but not others. That is, an accused cannot be cross-examined on matters on which he has chosen to remain silent: R. v. L. (G.), 2009 ONCA 501, 250 O.A.C. 266 (Ont. C.A.), at para. 39.

[110] At paragraph 27 of that decision, the Court commented:

27 Even if it were determined that Crown counsel's cross-examination fell within the boundaries of fairness, a proper instruction to the jury was of critical importance. There was no such instruction. The jury ought to have been told that they were entitled to take into account, in assessing the appellant's credibility, all of his evidence, including his explanation of why he did not provide a fuller account of his conduct. The jury ought to have been cautioned, however, that the appellant had a right to remain silent, had a right to choose what to say and what not to say, and that his failure to provide a fuller explanation, from the time of his interrogation until trial, could not be used to assess his credibility at trial: Palmer, at para. 9. Further, the jury ought to have been told that the appellant was under no duty or obligation to disclose anything to the police and no adverse inference could be drawn against him from his failure to do so.

[111] Mr. Gamble testified at this trial. I assess the statements that Mr. Gamble made himself or through his counsel prior to this trial only to compare them to the statements he made at trial with respect to the alleged driver. During his testimony, Mr. Gamble made statements relative to the alleged driver that were inconsistent with some of his previous statements and even within his own evidence at trial.

[112] Mr. Gamble testified that he knew Shane from the late 1990s when he and Mr. Gregory were in the Brantford Jail together. Mr. Gregory was his cellmate and Shane was on a different range. Mr. Gamble stated that he and Shane saw each other probably two or three days each week during exercise periods for about 20 minutes each time. He claimed that they talked, but only about cars. He stated he knew nothing about him and he never talked about himself to Shane.

[113] Mr. Gamble also stated that that he saw Shane in 2005 and 2006. At that time, Shane was constantly talking about wanting to get involved in Mr. Gamble’s tobacco ventures. Mr. Gamble stated that he would not have anything to do with Shane becoming involved as he had his own crew. He also stated that he felt that Shane was an “idiot” and he felt that Shane was either a “cop or was an informant.”

[114] The above statements are not consistent with what he told Officer Deschamp on October 11, 2014. At that time, he told Officer Deschamp that Shane was a friend of a friend and that he did not know him.

[115] A letter from Mr. Gamble’s former lawyer, Dean Paquette, of July 3, 2015 to the Crown was filed in evidence without objection, it stated:

As you are aware, it is our position that on the night of October 10, 2014, Mr. Gamble attended at Mr. Gregory's residence on Belfour St., Brantford. In accordance with plans made earlier in the day, Shane Leahman arrived in his truck and picked up the other two men to drive into Harley, Ontario. While a passenger in this vehicle, Mr. Gamble saw headlights and movement ahead on 8th Concession Rd. Believing they were approaching a R.I.D.E. program stop, Shane Leahman began to turn the truck around and only then indicated to his two passengers that the vehicle they were occupying was stolen. The subject chase ensued, ending in the collision at Colborne St. West, Brantford. Throughout this time, Mr. Gamble was seated in the rear cab area of the vehicle.

[116] In his testimony, Mr. Gamble stated that he did not see the RIDE program and that Shane stated that the reason why he turned around to avoid the RIDE program was that he had warrants for his arrest. When confronted with this difference, Mr. Gamble stated that Shane mentioned both that the truck was stolen and that he had warrants.

[117] In his testimony, Mr. Gamble stated that the name of the driver of the pickup truck on October 10, 2014 was Seamus. When confronted with the difference, he stated that Seamus could have been his nickname.

[118] I find it most significant that Mr. Gamble made it clear, in his testimony, that he felt Shane was an idiot and was either a cop or a police informant. He claimed that he had no contact with Shane from 2005 until sometime in 2010. At that time, he stated he had three very brief contacts with him outside of his home within a period of three months. The first time Shane was riding by his house while he was watering his lawn. Mr. Gamble claimed they simply made small talk and he found it difficult to remember who Shane was. The second was when Shane and his wife were walking by his home and a brief encounter with mere greetings occurred. The third encounter was of a similar nature when Shane was riding in Mr. Gamble’s neighbourhood.

[119] Mr. Gamble claimed that Mr. Gregory contacted him about Shane wanting to get involved in a tobacco deal and Mr. Gamble testified that he immediately told Mr. Gregory that “we are in.” For Mr. Gamble to accept involvement with a person that he thought was an idiot and either a cop or an informant makes no sense whatsoever. This is especially so when Mr. Gamble stated that he refused to even talk to Shane about his tobacco dealings previously.

[120] Mr. Gamble’s counsel submitted that I should infer that Mr. Gregory would have likely persuaded Mr. Gamble that Shane was ok to deal with. There is no other evidence other than Mr. Gregory and Mr. Gamble were close friends to allow me to draw such an inference. I find that Mr. Gamble is simply not credible with respect to his testimony concerning the involvement of a person named Shane or Seamus; Leahman, Lehman or Leaman.

[121] Upon considering all of the evidence, much of it related above, here is a brief summary of the significant and essential facts that I find:

1. I accept the evidence of Officers McMurtrie and Grubb, Sonya Parasram, and Liam Bielawski that only two persons exited the pickup truck subsequent to the collision on October 10, 2014. All of those witnesses had a vantage point that allowed for the clearest observations of anyone exiting. I consider that the event was traumatic. However, the timeline with respect to their arrival, their positioning and the position of the collided vehicles and their cruisers and other vehicles makes their observations with respect to how many persons exited the vehicle ring true.
2. I also consider that Officers Grubb and McMurtrie were vigilant about their surroundings given the extreme nature of the high speed pursuit, the attempts by the driver of the pickup truck to run the cruiser off the road and to ram the cruiser at one point and their knowledge of the potential that weapons from a previous night’s theft could be involved.
3. The proximity of the pickup truck, the pole and the car that was involved in the collision makes it almost impossible for someone else to have exited the vehicle without being seen. I also consider the fact that the arrest of Mr. Gregory took place right at the collision site. This would further limit anyone else exiting without detection.
4. Emergency vehicles, other police cruisers arrived at the collision scene within a minute. This further reduces the opportunity for another person to exit without detection.
5. Mr. Gamble fled the scene. He admitted to that fact. He was hiding in a backyard close to the scene. If he was only a passenger in the vehicle he had nothing to flee from. He claimed he was afraid that he would have been arrested simply because he was in a vehicle that was involved in a police chase. I reject that explanation when it is considered with all of the other evidence.
6. Mr. Gamble volunteered to Officers Herriott and DaCosta that he was not good as he had “just killed a fuckin kid.” Once again, taken together with all of the other evidence I reject his counsel’s suggestion that he was merely expressing shock and dismay at his heightened level of charges when he made that statement.
7. The forensic evidence must be looked at in conjunction with all of the other evidence. Only Mr. Gamble’s DNA was found on the driver side airbag, the hair meshed in the fiber in the tear in the ceiling and the hair in the “camo” cap.
8. Only Mr. Gregory’s DNA was found on the blood swabbed from the passenger side of the pickup truck.
9. The owner of the truck, Mr. Tatlock’s DNA was found on the cigarette butt that was on the floor of the passenger’s side only.
10. The rear seat showed no damage to the back side of the front seats or the ceiling. I agree with the evidence of Officer Bauer that, if someone was in the back seat during a collision of that speed and force, there would be some damage shown.

[122] On the totality of the evidence, I conclude, beyond a reasonable doubt, that Richard Gamble was the driver of the Chevrolet pickup truck on October 10, 2014. I find that it was his driving that was reckless in the extreme and without any regard for the safety of others. I find Richard Gamble guilty of criminal negligence in the operation of a motor vehicle that caused the death of Ashley Lerno.

[123] As a result of my findings of fact set out above, I find Richard Gamble guilty of driving a motor vehicle while disqualified from doing so.

[124] Having found that Richard Gamble was the driver of the Chevrolet truck, he admitted that he ran from the collision site. He hid in his attempt to avoid detection. When Officer Pitt said to him the occupants of the car he hit are severely injured, Richard Gamble’s response was “I know they are.” As a result of my findings, I find Richard Gamble, beyond a reasonable doubt, guilty of count 3 of the Indictment:

That on October 10, 2014 he did in the County of Brant, having care and control of a motor vehicle, to wit: a Chevrolet Truck that was involved in an accident with another motor vehicle, operated by Ashley Lerno, at Gilkison Street and Colborne Street with the intent to escape civil or criminal liability, he failed to stop his motor vehicle, give his name and address, and offer assistance to Ashley Lerno, knowing that another person involved in the accident required assistance or was dead, contrary to Section 252 (1.3) of the CCC.

The Charges against Richard Gamble and David Gregory

[125] That on or about the 10th day of October, in the year 2014, at the County of Brant, in the said Region, they did have in their possession property, to wit: a 2004 Chevrolet Silverado bearing Ontario Marker AJ11585 of a value exceeding five thousand dollars knowing that all of the property was obtained by the commission in Canada of an offence punishable by indictment, contrary to Section 345(1) (a) of the CCC.

[126] The elements of this offence include the following.

[127] 1. The property was in excess of $5,000. The evidence given by the Chevrolet truck’s owner, Mr. Tatlock, was that he purchased the truck approximately five months before it was no longer in his possession. The purchase price was somewhere over $5,000. He put some things into the truck such as sound items. He further stated that he lied to the police and to the insurance company in claiming that the car was stolen. He received $7,000 from the insurance company. This is the only evidence that I have of value. While I recognize that the car would have depreciated somewhat in the five months, I was given no evidence of how much it would have depreciated. Mr. Tatlock testified that he purchased it and that he was concerned that if he sold it he would not get the money he put into it. He did get $7000 from the insurance company.

[128] On the evidence before me I find that the Chevrolet’s value was in excess of $5000.

[129] 2. The remaining crucial issue will be resolved depending on my findings of credibility of the owner Mr. Tatlock. Mr Tatlock testified that he worked with Mr. Gregory at a roofing company. Mr. Gregory suggested to Mr. Tatlock that if he was worried about not getting his money back he should do what he called a “burn and earn” scheme. In essence he would give up the truck to Mr. Gregory and claim to the insurance company that it was stolen and he would collect from the insurance company. Mr. Tatlock’s Chevrolet was given over to Mr. Gregory.

[130] I am very aware that I must be extremely cautious when acting on the testimony of someone who is an admitted liar. Mr. Tatlock lied to the police when he told them his vehicle was stolen and he lied to the insurance company in what I find to be a solemn declaration that the truck was stolen. However, Mr. Tatlock was not promised any deals by the Crown not to testify in these proceedings. The only thing that Officer Gracey told him was that he was not going to pursue charges as he did not feel that Mr. Tatlock was involved in the collision that he was investigating. I also consider that Mr. Tatlock has exposed himself to potential charges of fraud. He did testify in these proceedings under the protection of the Canada Evidence Act, the Ontario Evidence Act and the Charter.

[131] I find that he was not offered any incentives to testify. He drove to the Ontario trial from Alberta and he paid for his own accommodations. He was subpoenaed to testify. He has exposed himself to the loss of the $7,000 received from the insurance company. He received no benefit and acted to his detriment in testifying at this hearing. I find that he was truthful about the scheme entered into with Mr. Gregory. I also find that once the Chevrolet was placed into the possession of Mr. Gregory the crime was committed. It was likely that the insurance company would incur a loss at that point.

[132] Mr. Tatlock stated that he did not know Mr. Gamble. He had no communication with him at all with respect to the truck and the scheme to “burn and earn.” The mere fact that Mr. Gregory and Mr. Gamble were close friends does not allow me to draw an inference that Mr. Gamble knew about the scheme with respect to the truck. I have reasonable doubt that Mr. Gamble is guilty of this count. However, I find that the Crown has proven beyond a reasonable doubt that Mr. Gregory is guilty of this count.

Justice R.J. Harper

Released: July 8, 2016