Court File and Parties
LINDSAY COURT FILE NO.: CR-13-00000060 DATE: 20160728 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: Her Majesty the Queen -and - Bradley Sippel
Counsel: Lucas O'Neill, for the Crown Nathan Baker, for Mr. Sippel
HEARD: July 3, 4, 5, 6, 7, 20, 21 and 25, 2016
JUDGMENT
BIRD J.:
Introduction:
[1] Just before 6:00 p.m. on September 29, 2012, a late afternoon bicycle ride turned tragic. Courtney Arthur and her friends Robert Cole and Stefanie Hardman were riding their bicycles southbound along Eldon Road near Lindsay. It is beyond dispute that Mr. Sippel struck all three of them from behind, killing Ms. Arthur and injuring Mr. Cole and Ms. Hardman. The issue at this trial is whether in doing so, his driving was criminal. He is charged with Criminal Negligence Causing Death, Dangerous Driving Causing Death and two counts each of Criminal Negligence Causing Bodily Harm and Dangerous Driving Causing Bodily Harm.
[2] It is the position of the Crown that in failing to avoid the cyclists, who were traveling in a completely lawful and appropriate manner along the side of the road, Mr. Sippel's driving was both criminally negligent and dangerous. The Crown submits that Mr. Sippel was driving at an excessively high rate of speed and took no steps to safely pass the cyclists, who were clearly visible from a significant distance.
[3] In contrast, the defence asserts that this was a tragic accident that was caused when Mr. Sippel unexpectedly lost awareness and blacked out just before he was going to move into the northbound lane to safely pass the cyclists. It was a sudden event that prevented him from taking the appropriate steps to avoid colliding with them. The defence submits that while Mr. Sippel was speeding prior to the collision, he was not going so fast that his driving was either dangerous or criminally negligent.
The Facts:
[4] The precise time of the collision is not known. However, it occurred within minutes of the first 911 call which was made at 5:59:21 p.m. Mr. Sippel called 911 for assistance shortly after his vehicle came to rest in a farmer's field. He went to assist Ms. Arthur and performed CPR on her until firefighters arrived. Unfortunately, her injuries were so catastrophic that she was pronounced dead at the scene. Ms. Hardman and Mr. Cole were both taken to the hospital where they were treated for their injuries. There is no question that the injuries sustained by them constitute bodily harm.
[5] Most of the facts in this case are not contentious. They are primarily contained in a comprehensive set of admissions that Mr. Sippel made pursuant to Section 655 of the Criminal Code. In addition, photographs of the scene and surrounding area, diagrams and other documents the parties agreed on were filed as exhibits. I have carefully reviewed all of the exhibits and the testimony of every witness. The following are the facts which are not in dispute and which I accept. This is not a complete list of every agreed upon fact, but rather those which I view as critical to a determination of the issues:
(a) Mr. Sippel was operating a rented Mazda 2 motor vehicle at the time of the collision. The car was approximately 1.69 metres wide (slightly more taking into account the side mirrors). It was in good working condition. The car had no mechanical defects that caused or contributed to the collision.
(b) Ms. Arthur, Mr. Cole and Ms. Hardman were all experienced cyclists. They were traveling southbound in single file along the west side of Eldon Road. They were as close to the edge of the paved road as they could safely be. None of them was more than 8 to 12 inches away from the edge of the road.
(c) Mr. Cole was the rear cyclist and had a highly visible yellow bag strapped to a trailer that was attached to the back of his bicycle. The width of the trailer, including the bag, was 40 centimetres. Assuming it was centred on the back of the bicycle, it would have extended approximately 20 centimetres to the left from the middle of the bicycle.
(d) It was daylight at the time of the collision. The cyclists were clearly visible and were seen by Mr. Sippel more than one kilometre north of the point of the impact. From the location he first saw the cyclists there was nothing that interfered with Mr. Sippel’s ability to see them continually up to and including the point of the collision.
(e) The cyclists did not contribute in any way to the collision. None of them were under the influence of any alcohol or drugs. There was nothing about their bicycles, Mr. Cole’s trailer or the manner in which they were riding that caused or contributed to the collision.
(f) Eldon Road was predominantly dry in the area of the collision. While a light drizzle had started, it did not affect the traction on the road.
(g) There were no other vehicles on Eldon Road at the location of the collision at the time it occurred. Mr. Sippel’s car was the only one that was travelling southbound in the immediate area. The sole vehicle that was traveling northbound was driven by Thomas Weber. He had passed the point of the impact and was north of the cyclists at the time of the collision. There was enough time and space for Mr. Sippel to have moved his car entirely into the northbound lane to pass the cyclists prior to the collision.
(h) At the location of the collision, the southbound lane was 3.31 metres wide. Taking into account the width of Mr. Sippel's car and the space taken up by the cyclists, Mr. Sippel would have been able to drive past them without striking them, while staying completely within the southbound lane.
(i) The speed limit on Eldon Road at the location of the collision was 80 km/hour. The speed at which Mr. Sippel was driving in the five seconds leading up to the impact was determined from an analysis of the Mazda’s Restraint Control Module (RCM). At the moment of impact, Mr. Sippel's car was travelling 108 km/hour. Five seconds prior to the collision its speed was 115 km/hour.
(j) In addition to recording the vehicle's speed, the RCM also provides information about the car’s engine throttle and whether the brakes were being employed. Five seconds before the crash the engine throttle was at 16%. It increased to 18% at 4.5 seconds and was then at 21% between 4 and 1.5 seconds. It decreased to 15% at 1 second and 0.5 seconds prior to the impact. This data suggests that the gas pedal was being used to maintain the vehicle's speed until 1.5 seconds before the collision. Eldon Road has a slight upward grade at this location.
(k) The RCM revealed that the Mazda's brakes were not engaged in the five seconds before the impact until either the time of the collision or, at the earliest, sometime less than 0.5 seconds before it occurred.
[6] Both Robert Cole and Thomas Weber testified that Mr. Sippel’s car was traveling at a high rate of speed prior to the collision. Their evidence on this point is consistent with the data recorded by the Mazda's RCM. In the five seconds immediately before the impact, Mr. Sippel would have travelled a total distance of 172.78 metres. There is no evidence that there was anything unusual about Mr. Sippel's driving at any point prior to the impact, other than his high rate of speed.
[7] Mr. Sippel was working as a respiratory therapist on September 29, 2012. He had spent the day at his parents’ home doing some work for them. He was scheduled to work that evening beginning at 7:00 p.m. at the Toronto East General Hospital. Earlier in the day, he made attempts to get two co-workers to take his shift for him. He was unsuccessful in doing so and realized that he was going to be late for work. The commute from his parents’ home to the hospital takes about two hours and fifteen minutes. He did not leave for work until after 5:00 p.m. I find that he was attempting to get to Toronto as quickly as possible and that he was concerned about the fact that he was running late. Even after the collision, Mr. Sippel was extremely focused on finding his Blackberry so that he could call the hospital to let someone know that he would not be coming in for his shift.
[8] Mr. Sippel provided a video statement to Constable Kenney of the Ontario Provincial Police (O.P.P.) on the evening of September 29, 2012. In that interview, he said several times that his speed was under 100 km/hour immediately before the collision. He told the officer that he had increased his speed to 110 km/hour to pass a cube van, but had completed that manoeuvre and slowed down prior to seeing the cyclists. During the statement Mr. Sippel denied that he was going "exceedingly fast". The data from the Mazda's RCM says otherwise.
[9] Mr. Sippel admitted that he saw the cyclists from a considerable distance away and estimated that he had several minutes to make the decision to move over to pass them. Based on the speed at which he was traveling, it would have taken Mr. Sippel just over 30 seconds to travel one kilometre. His estimate of having seen the cyclists several minutes before the impact is not accurate, but he certainly had more than enough time to see them, make the decision to go around them and execute that action.
[10] Despite having noticed them a kilometre north of the impact site, Mr. Sippel told Constable Kenney that he did not attempt to move around the cyclists until he was two car lengths behind them. Not only did he fail to take action early enough to avoid the cyclists, but he also failed to apply the brakes until either the time of the collision or immediately before it. Mr. Sippel told the officer that although he knew the cyclists were there, he was not paying much attention to them until he got to the point where he was going to move around them. He further stated that he was intending to pass them at the last minute to avoid any oncoming traffic.
[11] In his statement, Mr. Sippel explained the collision by saying that at the very moment that he was going to move to the left to safely pass the cyclists, a rut in the road grabbed his vehicle and pulled it to the right, causing him to strike them. He said that he was traveling between 90 and 100 km/hour when his whole car suddenly jerked to the right as a result of a rut that he did not see in the road. Mr. Sippel told Constable Kenney that prior to the impact he had noticed that the car was tracking a bit due to ruts in the road. If this were the case, one would expect that he would have slowed his car down, particularly as he was approaching the cyclists.
[12] Several witnesses testified about the condition of the southbound lane of Eldon Road at the point of the impact and in the kilometre leading up to it. Both Ms. Hardman and Mr. Cole said that they were riding at a fairly leisurely pace close to the side of the road. They were both experienced cyclists and neither had any difficulty navigating their way along the road. There were no holes or ruts that caused them any problems and their bikes were never jerked to the side. There was nothing on the road that they had to take evasive action to avoid.
[13] Mr. Weber lived in the area and was very familiar with Eldon Road. It was a road he traveled on regularly, both northbound and southbound. He normally drives between 90 and 100 km/hour on Eldon Road and has never had any difficulty doing so. On occasion, he has driven as fast as 110 km/hour and even at that speed had no trouble keeping his car properly on the road. Mr. Weber has never experienced a sudden jerk to the right while driving on Eldon Road. He said that the road was in decent shape and that the conditions that evening were perfectly fine. He was traveling northbound and his attention was drawn to Mr. Sippel's car because it was going quite quickly. Mr. Weber testified that he was well north of the impact site at the time of the collision, so his vehicle was not preventing Mr. Sippel from entering the northbound lane to pass the cyclists.
[14] Sergeant Lucas of the O.P.P. attended at the scene of the collision shortly after it occurred. That evening, he walked north along the road in the southbound lane and back south to the point of impact. His purpose in doing so was to inspect the road to detect any problems. Sergeant Lucas did not see any major ruts or holes in the road. There was nothing that he saw that would account for a vehicle being pulled suddenly to the right. In addition, Sergeant Lucas has driven along Eldon Road countless times over the course of almost 20 years, both in a personal capacity and as a police officer. At times, while responding to calls, he has driven at speeds well in excess of the speed limit. He has done so without difficulty and has never experienced a sudden jerk near the collision scene. Sergeant Lucas has never had any trouble controlling his car and has never gone onto the shoulder of the road unexpectedly in that area.
[15] Similarly, Constable Kenney is very familiar with that stretch of Eldon Road, having driven it on a regular basis. He has never experienced any sudden jerk to the side while driving. He has driven along Eldon Road at 115 km/hour or higher during emergency situations and has never had any difficulty controlling his car. Constable Kenney has never noticed any significant ruts, holes or grooves on the road that have caused his car to make a sudden movement. On the evening of September 29, 2012, he got to the collision scene by traveling the same route Mr. Sippel drove, southbound along Eldon Road. He found the road to be in good condition and was able to see the collision site from a considerable distance away. Constable Kenney parked his police vehicle to the south of the scene and walked the remaining distance. While doing so, he did not notice any defects in the southbound lane of Eldon Road that could account for the collision.
[16] Constable Blackman was the collision reconstructionist and thoroughly examined the scene, both on the evening of the incident and on at least one subsequent date. He took a series of photographs beginning 1,050 metres north of the impact site and continuing at intervals of 100 metres southbound. These photographs provide clear evidence of the condition of Eldon Road and the visibility in the area. Based on the photographs and the testimony of Constable Blackman, I find that Eldon Road was in good condition at the site of the collision and for at least 1 kilometre north of it. The road was consistent in its appearance over this distance. There was nothing different about the condition of the road at the location of the collision that would account for a driver being unable to control his car and move it to the left. Aside from very typical surface cracks, this portion of Eldon Road was in good repair. Constable Blackman also walked from the impact site northbound, specifically looking for defects or debris on Eldon Road that could explain the collision. He found none.
[17] Based on all of the evidence, I am satisfied that there was nothing about the condition of the southbound lane of Eldon Road that contributed to the collision. By all accounts, this was a typical country road that was in good condition and easy to navigate. There were no unusual ruts, grooves or holes that could have caused Mr. Sippel's vehicle to move to the right. I do not accept the explanation Mr. Sippel gave to Constable Kenney, that his car was suddenly pulled to the right by an unseen rut in the road at the precise moment that he was about to move to his left to pass the cyclists, nor am I left in a state of reasonable doubt by it.
[18] In his testimony before me, Mr. Sippel provided a totally different explanation for the collision. He said that at the intersection of Cresswell Road and Eldon Road he started to lose awareness and then almost immediately blacked out. The intersection of Cresswell Road and Eldon Road is slightly less than 150 metres north of the collision site. He claims to have no recollection of anything after that until the airbag on his vehicle deployed. At that point, his car was being pulled into the ditch towards the farmer's field. Specifically, he does not recall hitting the cyclists.
[19] Mr. Sippel admitted that he knew when he left his parents’ house that he was going to be late for work. He said there was some urgency to him getting there so he was trying to do so as quickly as he could. He testified that traffic and weather conditions permitting, he normally drives 20 to 30 kilometres over the speed limit in an 80 km/hour zone. He was doing so on the afternoon of September 29, 2012 from the time he left his parents' home, unless he had to slow down for traffic or to go through a town. In fact, he admitted that he was likely travelling faster than he normally would because he was in a hurry to get to work.
[20] In addition, approximately 800 metres north of the collision site there was a school. There was a large, bright yellow sign north of the school indicating that the speed limit was 60 km/hour in that area. Mr. Sippel conceded that he did not slow down at all when he entered the reduced speed zone. He maintained his speed of 115 km/hour, which was almost double the posted speed limit. Mr. Sippel testified that he did so because it was a Saturday afternoon and he did not expect there to be anyone at the school. He admitted, and the photographs demonstrate, that there are a number of trees in front of the school that obstruct a driver's view of the driveway. It is possible that there could have been cars or people around the school that could not be seen due to the trees. Despite being aware of this possibility, Mr. Sippel did not slow down at all as he entered the 60 km/hour zone. I find that he was so focused on getting to work that he gave no regard to the potential risk traveling at 55 km/hour above the posted speed limit created.
[21] Mr. Sippel further agreed that when he was approximately 250 metres north of the site of the impact he was in the middle of the southbound lane, was attempting to maintain his speed of 115 km/hour and had not made any effort to move away from the cyclists. At this point, he admits he was approaching a blind spot on the road and the centre line for southbound traffic was solid meaning that no passing was allowed. Mr. Sippel testified that at this moment, he was still in a rush to get to work and did not want to slow down to pass the cyclists. Despite the blind spot and the solid yellow line, he intended to maintain his speed and move into the northbound lane, at the last possible moment to pass them. His primary concern was clearly his desire to get to work as quickly as possible. He did not slow down in the school zone. He did not slow down when he was seconds away from the cyclists. He did not activate his brakes until the moment of the impact or immediately prior to it.
[22] Gene Pugliese was an advanced care paramedic who responded to the scene shortly after the collision. He found Mr. Sippel standing by the Mazda. Upon assessment, Mr. Pugliese determined that Mr. Sippel was fully alert. He had a brief conversation with him, primarily focused on whether Mr. Sippel needed or wanted medical attention. The only injury Mr. Sippel complained of was a sore wrist, caused by the airbag. Mr. Sippel did not say anything about having lost awareness or blacking out, despite his extensive medical background. Nor did Mr. Pugliese, who was a very experienced paramedic, notice anything consistent with a loss of consciousness. He found Mr. Sippel to be alert and responsive. Mr. Sippel refused medical treatment.
[23] Applying the analysis mandated by R. v. W. (D.), [1991] 1 S.C.R. 742, for the following reasons I reject the evidence of Mr. Sippel and am not left in a state of reasonable doubt by it:
(a) During the course of his evidence, particularly in cross-examination, Mr. Sippel was evasive and unwilling to admit to things that could cast him in a poor light. Even when faced with clear misstatements to Constable Kenney in the video statement, Mr. Sippel would not admit that he was being less than candid. His evidence before me was designed to portray himself in the best possible manner, even at the expense of the truth.
(b) Mr. Sippel admitted that prior to September 29, 2012 he had never experienced a blackout in his life. While he does have high blood pressure, he does not suffer from any medical condition that renders him susceptible to blackouts. It defies credibility to believe that his first ever blackout suddenly occurred seconds before he struck three cyclists. He had been feeling well all day, was well rested and was not under the influence of any alcohol or drugs. There is no conceivable reason for him to have lost consciousness. It would be a remarkable coincidence for him to have done so seconds before the fatal collision. I have no difficulty in concluding that Mr. Sippel fabricated this explanation, after realizing that the story he gave in his police interview about the rut was not credible.
(c) The evidence of Mr. Pugliese is totally inconsistent with Mr. Sippel having blacked out shortly before being assessed by this experienced paramedic. He showed no signs of having lost consciousness and did not mention anything about having done so. Mr. Pugliese's job was to make sure that Mr. Sippel was not in need of medical attention. He asked him specifically about any injuries or medical issues, and all that Mr. Sippel complained about was a minor wrist injury. Mr. Sippel declined medical attention. If he had experienced a loss of awareness or consciousness, Mr. Sippel would have told the paramedic about it.
(d) Mr. Sippel’s video statement to the police was largely self-serving and designed to portray his driving in the best possible manner. He minimized his concern about being late for work and left the impression that he had firmly arranged for a colleague to cover for him until he arrived. Mr. Sippel was asked repeatedly about his speed immediately prior to the collision and he consistently said that he was going between 90 and 100 km/hour. At one point, Constable Kenney advised Mr. Sippel that he did not believe what he was saying about his speed. Mr. Sippel remained firm in his assertion that he was travelling in that range. In his evidence at trial, he admitted that he had been going 115 km/hour but denied intentionally misleading the officer. Mr. Sippel said that he was confused and shocked, and was answering all of the questions to the best of his ability in an effort to assist the police. He testified that at the time he gave the statement he erroneously believed he was travelling between 90 and 100 km/hour. I reject that evidence. It makes no sense, in light of the fact that he routinely travels 20 to 30 kilometres over the speed limit in an 80 km/hour zone. On this occasion he was worried about being late for work, so he would have been driving faster than his usual speed. This is borne out by the data from the Mazda's RCM. In addition, as an experienced driver, Mr. Sippel would have known that he was travelling far more quickly than 10 to 20 kilometres above the speed limit. I find that he deliberately underestimated his speed during his police interview, in an attempt to portray his driving in a favourable light to detract from his culpability in the collision. This demonstrates a willingness on the part of Mr. Sippel to mislead in an attempt to explain the collision in a manner that renders him blameless.
(e) Throughout his video statement, Mr. Sippel repeatedly and in great detail told Constable Kenney that the collision was caused when his car unexpectedly hit a rut which pulled his car to the right. He maintained this position even after being told by Constable Kenney that the officer did not believe him. As part of this story, Mr. Sippel said that he was two car lengths behind the cyclists at the moment he decided to move to left to pass them and was unable to do so because of the rut. If he lost consciousness near Cresswell Road, he would have been at least 100 metres behind the cyclists at that point. This is totally inconsistent with him describing being two car lengths behind them when deciding to move to the left. Mr. Sippel testified that he was not intentionally misleading Constable Kenney when he said a rut in the road caused the collision. He now accepts that there was no rut, but maintains that he was being truthful during his statement and made an erroneous assumption about what caused the collision. I reject this evidence. Mr. Sippel provided details about having suddenly hit a rut that pulled his car to the right causing him to strike the cyclists. He gave this version repeatedly and described how it felt when the car struck the rut. He did this in a deliberate, persistent attempt to mislead Constable Kenney. This too shows that Mr. Sippel is both able and willing to create a detailed story in an effort to absolve himself of responsibility.
(f) Mr. Sippel testified that he had moved over to the far left side of the southbound lane, close to the centre line, prior to blacking out. He says he did this so that he would be in a position to move into the northbound lane at the last moment to pass the cyclists. However, in his video statement he told Constable Kenney that immediately before his car pulled to the right he was approximately 18 inches from the right shoulder. While I have rejected and he has abandoned the rut story, he was clearly speaking about the moment right before he struck Robert Cole. Mr. Sippel also referred to hugging the inside of this lane. He testified that he defines the inside of the lane as the portion closest to the centre line. This is inconsistent with his physical demonstration of being just 18 inches from the right shoulder. At that distance from the shoulder, he would not have been close to the centre line on Eldon Road. Being 18 inches from the right shoulder is consistent with Mr. Sippel saying repeatedly, throughout the course of the statement, that he intended to stay in his lane until the last possible moment and that when he did attempt to move to his left to pass the cyclists his car was suddenly pulled to the right. I reject his evidence at trial that he was close to the centre line, on the far left side of the southbound lane immediately before the impact, or at any time prior to that.
(g) In his evidence at trial, Mr. Sippel testified that he remembers nothing about the impact and has no memory of anything between losing awareness at Cresswell Road and the airbag deploying. However, at two points in his video statement he described hearing a bang on his windshield, which would have been caused by Courtney Arthur's body hitting it.
(h) Mr. Sippel now purports to have a very clear recollection of being at the intersection of Cresswell Road and Eldon Road when he lost awareness. However, in his video statement he said that he did not see a cross street just north of the collision site.
(i) Mr. Sippel claims to have begun losing awareness and then consciousness approximately 150 metres north of the point of impact. At a speed of 115 km/hour, Mr. Sippel was travelling approximately 32 metres per second. 1.5 seconds prior to the collision, Mr. Sippel would have been about 48 metres north of the collision site, a fair distance south of the point where he says he started to lose awareness and blacked out. Between 1.5 and 4 seconds before the collision, the engine throttle was at 21%, indicating that the gas pedal was activated. Mr. Sippel agreed that while going up the slight incline on Eldon Road towards the cyclists he had to use the accelerator in order to maintain his speed. The fact that the gas pedal was being pushed down up to 1.5 seconds prior to the collision is inconsistent with Mr. Sippel being unconsciousness at that time.
(j) Mr. Sippel agreed in his evidence that Constable Kenney was very fair to him on the evening of September 29, 2012. Having carefully reviewed the video statement, I conclude that the officer gave Mr. Sippel every opportunity to say whatever he wanted to about the collision. At one point Constable Kenney asked Mr. Sippel if there was anything that they had not talked about that could have contributed to the collision. Mr. Sippel responded by saying “Not that I can think of”. When given the chance to mention losing awareness or consciousness, Mr. Sippel did not say anything about having done so. Mr. Sippel did tell Constable Kenney that he was taking medication for high blood pressure. The officer asked him if he had any reason to believe that the medication was a contributing factor in the collision. Mr. Sippel said he was not aware of any reason to think so. Even when discussing his medical condition, Mr. Sippel did not say anything about having lost awareness or consciousness. Mr. Sippel’s failure to mention his loss of consciousness during the course of a lengthy statement, during which the officer gave him every opportunity to tell him anything that could possibly have contributed to the collision, is inexplicable. Mr. Sippel knew that Ms. Arthur had been killed and that he was at risk of being charged with either careless or dangerous driving. He understood just how serious the situation was. His failure to mention losing consciousness in those circumstances defies credibility.
(k) Mr. Sippel testified that it was not until a year or two after the collision that it first occurred to him that he had lost consciousness immediately before the collision. He provided no explanation for why it took so long for this to become clear to him. Mr. Sippel admitted that he thought about the incident and what had caused it at least several times a week after it occurred. Mr. Sippel’s claim to have suddenly remembered, long after the collision, that it was caused by him losing consciousness is not credible.
[24] During the conversation that Mr. Sippel had with Mr. Pugliese, he told him that he had been looking down at the time of the collision. I accept that evidence. Mr. Pugliese did not recall or record the precise words Mr. Sippel used, but got that response when he asked him if he remembered what happened at the time of the collision.
[25] Mr. Sippel had his Blackberry phone with him in the car at the time of the collision. However, there is no evidence that Mr. Sippel was using his phone immediately before the impact or that its presence contributed in any way to the collision. The Crown invites me to speculate that because only Mr. Sippel's left hand was injured by the airbag, his right hand was operating the Blackberry rather than being on the steering wheel. In my view, there is not a sufficient basis to come to that conclusion. The evidence does not establish exactly what Mr. Sippel was doing in the seconds before he collided with the three cyclists as he approached them at a speed well in excess of the posted limit. However, it is clear that his attention was not sufficiently focused on them or on the road. Had it been, the collision would not have occurred.
The Law:
[26] The Supreme Court of Canada clarified the law with respect to dangerous driving in R. v. Beatty, 2008 SCC 5, [2008] S.C.J. No. 5. Dangerous driving is based on a form of negligent conduct. The first question to be asked is whether, viewed objectively, the accused was driving in a manner that was dangerous to the public, having regard to all of the circumstances including the condition and use of the place and the amount of traffic that was there at the time, or might reasonably have been expected to be there. It is the manner of the accused’s driving that must be assessed, not the consequences of it. While the result may assist in the assessment of the risk involved, it does not answer the question of whether the vehicle was being operated in a manner that was dangerous to the public (at paragraphs 43 and 46). The Court cautioned that trial judges must not leap to a conclusion about the manner of driving based on the consequences of it.
[27] Care also must be taken not to conflate the actus reus and the mens rea components of the offence (R v. Reynolds 2013 ONCA 433, [2013] O.J. No. 2933 (C.A.) at paragraphs 18 and 19). The test for the mens rea of the offence is a modified objective one. It can only be found where there is a marked departure from the standard of care expected of a reasonable person in the circumstances of the accused (Beatty, supra at paragraphs 20 and 33). The objective test must be modified to give the accused the benefit of any reasonable doubt about whether the reasonable person would have appreciated the risk, or could and would have done something to avoid creating the danger (Beatty at paragraph 37). This caveat prevents criminal liability from attaching to a person whose driving was objectively dangerous, but was caused by a totally unexpected event such as a sudden medical problem.
[28] It is not necessary for the Crown to prove that the accused had a positive state of mind such as intent, recklessness or wilful blindness (Beatty at paragraph 47). While there is no need to prove subjective mens rea, the lack of care exhibited by the accused must be serious enough to merit criminal punishment (Beatty at paragraph 48). This caution was repeated in R. v. Roy, 2012 SCC 26, [2012] S.C.J. No. 26. The Court acknowledged that carelessness can result in tragic consequences. Courts must, therefore, be vigilant in assessing the fault requirement of the offence of dangerous driving to ensure that conduct that is merely careless is not criminalized (at paragraph 2).
[29] The Court noted that the distinction between a mere departure and a marked departure is a matter of degree. The trier of fact must identify how and in what way the departure from the norm goes markedly beyond mere carelessness (Roy, supra, at paragraph 30). The analysis should be approached in two stages. The first question is whether a reasonable person, taking into account all of the relevant circumstances, would have foreseen the risk and taken steps to avoid it. If so, was the failure of the accused to do so a marked departure from the standard of care expected of a reasonable person in his situation (at paragraph 36)?
[30] The necessary fault element for either dangerous driving or criminal negligence can be inferred from the driving itself, absent some explanation that would negate it (R. v. Willock, [2006] O.J. No. 2451 (C.A.) at paragraph 40).
[31] In deciding whether the actus reus of the offence of dangerous driving was committed, the trier of fact must determine whether the accused's driving endangered the public. It is the risk of damage or injury created by the driving that is relevant and not the consequences of it (Roy at paragraph 34).
[32] Courts have recognized that conduct occurring in as little as two to three seconds can amount to a marked departure from the standard of a reasonable person, and demonstrate a wanton or reckless disregard for the lives and safety of others sufficient to support a finding of dangerous driving and criminal negligence. However, driving over such a brief period of time is more suggestive of civil rather than criminal liability (see for example R. v. Willock, supra, at paragraph 31). A conviction for dangerous driving is not appropriate in cases involving a momentary lack of attention or lapse of judgment (R v. Robertson [2013] B.C.J. No. 1486 (C.A.)).
[33] In R. v. Richards, [2003] O.J. No. 1042 (C.A.), the Court held that in some cases excessive speed alone can constitute the offence of dangerous driving. The issue is whether driving at a particular speed, under specific circumstances, represents a marked departure from the standard of care expected of a reasonable driver (at paragraphs 11 and 15). If someone is driving so fast that he or she is unable to avoid an unexpected occurrence on the road, this can support a conviction for dangerous driving (R v. M K.M [1998] O.J. No. 1606 (C.A.)).
[34] Failing to keep a proper lookout, combined with excessive speed, can ground a conviction for dangerous driving (R. v. Parkin, [2005] O.J. No. 5557 (C.A.) affirming [2004] O.J. No. 5544 (S.C.J.)). In that case, Mr. Parkin smashed into the rear of a car seconds after it had merged into a lane on a highway in a construction zone. The trial judge found that the accused was travelling too fast in the circumstances (although his evidence was that he was driving at the speed limit) and that he was not keeping a proper lookout. This combination resulted in a conviction for dangerous driving that was upheld on appeal.
[35] In R. v. Grewal, [1991] B.C.J. No. 706 (C.A.), a conviction for dangerous driving causing bodily harm was upheld. That case involved the accused hitting a cyclist who was riding along the paved shoulder of the road. The Court took into account the fact that the cyclist was there to be seen, and would have been visible for some distance before the collision site. It was not necessary for the trial judge to have been able to determine the reason the accused was not paying proper attention. Swerving onto the right shoulder twice in a short period of time, was more than momentary inadvertence and was sufficient to constitute a marked departure from the norm.
[36] In a case that is very similar factually to this one the accused was found guilty of dangerous driving when he struck a cyclist he was attempting to pass while traveling at a speed of 110 km/hour in an 80 km/hour zone (R v. Weldon [2008] O.J. No. 725 (C.J.)). There was no evidence of any inappropriate driving other than the excessive speed. De Filippis J. found that trying to pass a cyclist at a speed of 30 km/hour over the posted limit while cresting a hill was a marked departure from the manner in which a reasonable person would drive in the same circumstances.
[37] In order to secure a conviction for the offence of criminal negligence, the Crown must establish that the accused's conduct represented a marked and substantial departure from the conduct of a reasonably prudent person in those circumstances. This high standard applies to both the physical and mental elements of the offence (R. v. M R., [2011] O.J. No. 1017 (C.A.), at paragraphs 28 and 29). The question is whether the accused either adverted to the risk involved and disregarded it, or failed to direct his mind to the risk and the need to take care at all (at paragraph 30).
[38] In R. v. J.L., [2006] O.J. No. 131 (C.A.), the Court made it clear that the moral blameworthiness that attaches to the offence of criminal negligence is at the high end of the spectrum. Further along the spectrum is dangerous driving, followed by careless driving (at paragraph 14). To establish that conduct is wanton or reckless, the consequences must be more obvious than a risk of injury that would have been foreseen by a reasonable person. All of the circumstances surrounding the offence must be considered (at paragraphs 18 and 19).
[39] In R. v. Aleksev, 2016 ONSC 1834, [2016] O.J. No. 1962 (S.C.J.), the accused was found guilty of dangerous driving, criminal negligence and manslaughter after driving through a stale red light at a high rate of speed and killing a cyclist. While it was not possible to determine his precise speed, Trotter J. was satisfied that the accused was driving well above the speed limit. There was some evidence that as he approached the intersection the accused removed his attention from the road. Trotter J. found that the combination of excessive speed and distraction was a marked departure from the standard of care expected of a reasonable person in those circumstances. There was evidence of reckless driving immediately prior to the collision that involved high speed and a near miss with a school bus. This pattern of driving was sufficient to constitute the offences of criminal negligence and manslaughter.
[40] In this case, Mr. Sippel exhibited a pattern of driving at an excessive speed from the time he left his parents’ home. On his own evidence, for the majority of his drive he would have been travelling at least 20 to 30 kilometres above the speed limit, likely more. His primary, if not sole focus, was on getting to Toronto as quickly as possible. He had made two unsuccessful attempts to get co-workers to take his shift. He was required to be in the intensive care unit at Toronto East General by 7:00 p.m. at the latest, which was impossible in light of the time he left his parents’ house. He was going to be significantly late for work and did not have confirmation that anyone would cover for him until he arrived. I have no doubt that this situation was causing him anxiety and was at the forefront of his mind. It impacted on the manner in which he drove and the decisions he made prior to the collision.
[41] On the other hand, Courtney Arthur, Robert Cole and Stefanie Hardman were enjoying a leisurely bicycle ride along a country road on a clear afternoon. They were clearly visible as they traveled southbound along Eldon Road and took every precaution they could to ride safely. There was absolutely nothing about their conduct that contributed in any way to the terrible tragedy that befell them. The responsibility for the collision rests solely on the shoulders of Mr. Sippel.
[42] In determining whether he is criminally liable for the death of Ms. Arthur and the bodily harm caused to Mr. Cole and Ms. Hardman, I have carefully considered all of the evidence in the context of the governing legal principles. Specifically, I have been vigilant about ensuring that the horrendous consequences of the collision have not improperly impacted on my assessment of whether the Crown has proven the elements of the offences beyond a reasonable doubt.
[43] The collision on Eldon Road did not result from a momentary lapse of attention. It was not caused by a rut in the road. Nor did it happen because Mr. Sippel suddenly lost awareness and consciousness at the intersection of Cresswell Road. Rather, it was the predictable result of the manner in which Mr. Sippel operated his motor vehicle in the kilometre leading up to the impact.
[44] Mr. Sippel was north of the school, about a kilometre away from the cyclists when he first saw them. From that moment he had a positive obligation to adjust his driving to make sure that he did not put them at risk. Any reasonable person in those circumstances would have reduced their speed from 35 kilometres over the limit to something much closer to 80 km/hour or less, and kept their eyes focused on the road and on the cyclists. Mr. Sippel's intention to maintain his excessive speed and not take any evasive action, until the last possible moment, was objectively dangerous having regard to the nature of the place and the people who were there at the time.
[45] The fact that he barrelled through the school zone, with its posted limit of 60 km/hour, knowing that his view of the driveway of the school was obstructed and that there could have been cars or pedestrians in the area, is evidence of a wanton and reckless disregard for the lives and safety of others.
[46] In order to maintain his speed of 115 km/hour as he was bearing down on the cyclists, Mr. Sippel had to push down on the gas pedal because there was a slight incline at that location. Not only did Mr. Sippel fail to brake, he was activating the accelerator in the seconds before the impact while remaining in the same lane as the cyclists, about 18 inches from the right shoulder. A collision with them was inevitable in those circumstances.
[47] The fact that Mr. Sippel did not apply the brake until 0.5 seconds or less before the impact is evidence that he was not paying proper attention. He was completely focused on going as quickly as he could to get to work, and his attention was on his lateness rather than on the road and on the cyclists. Whether the collision occurred because he was looking down at the time, as he told Mr. Pugliese, or because he was unable to control his car sufficiently to move around the cyclists due to his excessive speed is of no moment. The collision resulted from his pattern of driving and the fact that he put his desire to get to Toronto ahead of his obligation to ensure the safety of others on the road. Mr. Sippel was not going to let anything; be it posted speed limits, the potential for people to have been around the school or, sadly, the presence of Ms. Arthur and her friends get in the way of his race to work.
[48] The evidence overwhelmingly establishes that from at least 1 kilometre north of the collision site, Mr. Sippel’s manner of driving was both dangerous and criminally negligent. He was fully aware of the risk involved in continuing to drive at 115 km/hour towards the cyclists, without taking any action to give them sufficient space in the lane. He disregarded this risk entirely because getting to work was more important to him. Mr. Sippel made a series of deliberate decisions on the afternoon of September 29, 2012, that placed his interests above his obligation to drive in a responsible and safe manner. Those decisions cost Courtney Arthur her life and caused serious injuries to Robert Cole and Stefanie Hardman.
Conclusion:
[49] For the foregoing reasons, Mr. Sippel is found guilty of Criminal Negligence and Dangerous Driving in the death of Courtney Arthur and of two counts each of Criminal Negligence and Dangerous Driving Causing Bodily Harm in relation to Robert Cole and Stefanie Hardman.
Justice L. Bird
Released: July 28, 2016
