R. v. Curry, 2016 ONSC 5217

CITATION: R. v. Curry, 2016 ONSC 5217

COURT FILE NO.: CR 10-1450

DATE: August 10, 2016

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Her Majesty the Queen

– and –

Tyler Curry

accused

Peter Barnes, for Her Majesty the Queen

Israel Gencher, for Tyler Curry

REASONS FOR JUDGMENT

ABRAMS, J

Overview

1This is a tragic case that resulted from the all too common and dangerous tripartite combination of young men, alcohol and a motor vehicle.

2The three young men, Tyler Curry, Dylan Heisel and Mason Amell, attended a high school end of the year party at the Utman residence, located at 2608 Buckwheat Road, Edwardsburgh Township, on August 22, 2009.

3In the early morning hours of August 23^rd, the three young men left the party in Tyler Curry’s mother’s Pontiac Montana van (“the van”), with Tyler Curry behind the wheel, Dylan Heisel in the right passenger seat, and Mason Amell positioned in the middle row Captain’s seat, immediately behind Dylan Heisel.

4A short time later, the van left the travelled portion of County Road 44 and collided with a tree, killing Dylan Heisel and injuring both Tyler Curry and Mason Amell.

5At the point of impact, Dylan Heisel was still occupying the right front passenger seat.

6At the point of impact, the van caught fire, however, Dylan Heisel died as a result of the injuries that he sustained upon impact, as opposed to the fire that consumed the van.

7Just prior to the point of impact, the van was travelling at speeds between 101 m.p.h (162 km./h.) and 104 m.p.h, (167 km./h.).

8The conditions were mainly clear at the material place and time of the accident, although the moon was below the horizon providing no illumination.

9The driving distance from the Utman residence to the point of impact was measured at 4.8 km. The driving time, at an average speed of 70.24 km/h, was measured at four minutes and six seconds. Moreover, GPS mapping software estimated the driving distance between the two locations to be four minutes and forty-six seconds.

10Ms. Donna Thorpe resided approximately 100 meters from the point of impact. She was awakened by the sound of the collision. After getting up and walking to her front door, she saw flames that were “really high up in the tree”. Ms. Thorpe estimated that it took her one or two minutes to place a 911 call the Brockville Fire Department after hearing the sound of the collision and seeing the flames. The call was received at 2:17:10 a.m.

11Luke Casselman and his then girlfriend, now spouse, Miranda Casselman, came upon the accident. Mr. Casselman placed a 911 call to the Brockville Fire Department, which was received at 2:15:45 a.m.

12It is admitted that at 2:15:45 a.m., Tyler Curry’s projected blood alcohol concentration was 169 to 219 milligrams of alcohol in 100 millilitres of blood.

Charges

13Tyler Curry is charged with:

1. Dangerous Driving Causing Death (Dylan Heisel) s. 249(4) CCC – Count #1;

2. Dangerous Driving Causing Bodily Harm (Mason Amell) s. 249(3) CCC – Count #2;

3. Impaired Driving Causing Death (Dylan Heisel) s. 255(3) CCC – Count #3;

4. Impaired Driving Causing Bodily Harm (Mason Amell) s. 255(2) CCC – Count #4;

5. Blood Alcohol Over Legal Limit Causing Accident Resulting In Death (Dylan Heisel)

s. 255(3.1) CCC – Count #5; and,

6. Blood Alcohol Over Legal Limit Causing Accident Resulting In Bodily Harm (Mason Amell) s. 255(2.1) CCC – Count #6.

Issues

14This case gives rise to a primary question: who was driving the van at the material place and time of the accident? In other words, has the Crown proven, beyond a reasonable doubt, that Tyler Curry was the driver of the van at the material place and time of the accident? Alternatively, has the Crown proven, beyond a reasonable doubt, that Tyler Curry was a party to any of the offences alleged in the indictment?

Evidence – Crown

Kaitlyn Utman

15Kaitlyn Utman hosted the end of the year party at her parents’ rural residence. She and her parents anticipated that alcohol would be consumed by those in attendance. It was a “BYOB” event. Thus, Kaitlyn and her parents took steps to mitigate the chances that anyone would leave the party while operating a motor vehicle, after having consumed alcohol. While greeting each guest, Kaitlyn determined how they would be getting home. Her parents offered to provide rides home and/or a place for people to stay overnight. Further, they attempted to collect car keys from individuals who drove to the party, Tyler Curry being included. Finally, Kaitlyn essentially patrolled the party to monitor people’s level of alcohol consumption.

16Kaitlyn testified that she had two “coolers” to drink earlier in the evening, but that she stopped drinking when she became concerned that some individuals were drinking to excess.

17Kaitlyn greeted Dylan Heisel around 8:00 p.m. and remembered having a drink with him (one of the two coolers that she consumed). She greeted Mason Amell around the same time. She recalled that Dylan Heisel and Mason Amell brought alcohol with them. At some point, Mason Amell accompanied Kaitlyn into the house to speak with her parents.

18Kaitlyn recalled seeing Tyler Curry arrive in what she believed was his mother’s van. Kaitlyn greeted Tyler Curry after he parked the van in an area near the basketball net, just off of the laneway, on the grass. This would have been on the left side of the laneway with the nose of the vehicle facing in, towards the basketball net.

19Tyler Curry was alone when he arrived. Kaitlyn believed that he had just come from work. She asked him how he would be getting home. She then asked him for his car keys, which he refused to hand over. He assured her that he would either sleep in the van, or get someone who was sober to drive him home to Prescott.

20Kaitlyn testified that Tyler Curry arrived with a case of beers in the van, although she could not say how big the case was or whether the case was full.

21Kaitlyn estimated that out of approximately 30 people in attendance, about 20 of them were drinking to excess. People began to leave around 1:00 a.m. on the 23^rd. Kaitlyn was involved in assessing who needed a ride home. There were three peer-designated drivers, apart from her parents who were also available to take people home.

22It was while she was engaged in the process of determining who needed a ride home that she spotted the Curry van leaving sometime between 1:30 a.m. and 2:00 a.m. With reference to Exhibit #1, Appendix “A”, Kaitlyn was standing in the laneway between T1 and the light post when she made this observation. The Curry van, which was parked near the basketball net, backed up and backed around T1. It was then that she saw Mason Amell jump into the van through the right passenger sliding door as the van began to reverse.

23At that point she recalled being distraught and saying, “That’s Tyler Curry’s van.” She knew that he had been drinking and that he should not have been leaving in the van, assuming that he was driving the vehicle. Admittedly, she did not see Tyler Curry behind the wheel at the time.

24Reflecting back, Kaitlyn had passed Tyler Curry on a couple of occasions during the evening. She had seen him stumbling and assessed that his speech was different. She was concerned that he was going to leave the party behind the wheel of the vehicle. Courtney Barton confirmed with her that it was the Curry van that Kaitlyn saw leaving.

25Kaitlyn confirmed during cross-examination that she had some interaction with Mason Amell during the party, on approximately two or three occasions. On an early occasion, she testified that during her interactions with Mason Amell, she noticed that his speech was a little slurred, but she did not see him stumbling or swaying.

Courtney Barton

26Courtney Barton is a cousin of Tyler Curry’s. She knew most of the people at the party either through high school or as friends of friends. She was drinking at a pre-party before she arrived at the party. She described her condition as “buzzed”. She was aware of her surroundings but not stumbling, and her speech was “fair”.

27Courtney engaged in a negotiation of sorts with Tyler Curry and Judy Utman in which Judy was attempting to get Tyler Curry to relinquish his car keys. Courtney told Tyler Curry to give his keys to Judy. Tyler Curry assured them that he was fine, he wasn’t going to drive and that he was going to sleep in the van.

28It was later on that Courtney saw the Curry van, a Montana, leaving. She saw the van as it was backing out of the area between the stone fence and the basketball net. She did not see anyone get into the van. She saw the van stop briefly along the driveway and people standing next to the driver’s side door. She yelled for someone to stop the van out of concern that the driver had likely been drinking, given the nature of the party.

29Courtney had enough interactions with Tyler Curry that night to know that he had been drinking, based on previous observations that she had made of him when he was under the influence of alcohol. One of the telltale signs, as she described, was that he seemed friendlier than normal, which was typical of his behaviour when he was drinking. Hence the reason why she was concerned when she saw the van leaving.

30Courtney clarified during cross-examination that her conversation regarding Tyler Curry’s car keys began somewhere near the house. It was there that Judy approached her and said that Tyler Curry would not give up his keys. She and Judy then approached Tyler Curry together when he again refused to hand over the keys and promised not to drive, which she believed all transpired near the house.

31Courtney testified that her family owned a Montana van similar to the one that Tyler Curry was operating. It was configured with bucket seats in the front, bucket seats in the middle and a bench seat in the back. She conceded that she had never seen an adult move from the front seats to the middle row of seats, within the confines of the van.

Janelle Fournier

32Janelle Fournier was drinking with some friends before heading to the party around 11:00 p.m. to 11:30 p.m. Admittedly, she was “pretty intoxicated” as a result of the pre-party drinking. However, once she arrived at the party, she more than likely had just one beer in her hand simply to “keep up appearances”.

33Janelle had known Tyler Curry for approximately two years. They were friends and lived close to each other. She also knew Dylan Heisel and Mason Amell as friends.

34When she and her group were ready to leave, they called for some cabs to pick them up. The first cab to arrive left with members of her group. Thereafter, Janelle and others waited for a second cab to arrive, which took approximately 30 to 45 minutes. By that time, she was more sober than when she arrived at the party.

35Janelle described seeing the van coming towards them on the driveway and then pulling out onto the road. She believes that the van came to a stop. Tyler Curry was driving the van and had his window down. She could see Tyler Curry in the driver’s seat and Dylan Heisel in the front passenger’s seat. Mason Amell slid open a side door. Words were exchanged. Janelle and her group tried to persuade the three young men to come with them in a cab. She described them, the two groups, engaging in typical teenage “non-sober interactions”. The three young men refused to come with them, and then the two groups began “wooing back and forth”. The van then pulled away, headed towards Spencerville.

36Janelle specifically recalled seeing the van swerve more than once as it headed away and down the road, with Tyler Curry behind the wheel. She did not think that it swerved shoulder to shoulder, but it did swerve more than once.

37Janelle confirmed during cross-examination that she had no recollection of the three young men’s state of sobriety. However, she clarified that the typical teenage “non-sober interactions”, the “wooing”, was “definitely not something you do when you’re sober”. Further, she recalled that it was said, as the van was driving away, swerving, that they should have tried harder to persuade the three young men to come with them in a cab.

38Their cab eventually arrived and departed along the same road into Spencerville. Thus, they came upon the accident scene. Janelle recalled seeing the van in flames. The cab stopped and the boys in the cab ran towards the accident scene. Janelle and Courtney Gardner remained in the cab.

Cody Liezart

39Cody Liezart arrived at the party somewhere between 10:00 p.m. and 10:30 p.m. having been driven there with a friend. Cody and the friend were dropped off by the friend’s mother.

40He recalled taking a 12-pack of beer with him to the party and consuming six or seven, along with some “sourpuss” shots (15% alcohol), over the three or four hours that he was there. He had not been drinking prior to the party. He had a “buzz on”, but he was not drunk, in his estimation. That said, he conceded that he would not have driven.

41Cody was standing at the end of the driveway with the same group of individuals as described by Janelle Fournier, waiting for his friend’s mother to come and pick them up. Notably, the only vehicle that he saw leave was Tyler Curry’s mother’s van. Cody saw Tyler Curry, Dylan Heisel and Mason Amell in the van. Tyler Curry was occupying the driver’s seat, Dylan Heisel was in the front passenger’s seat, and Mason Amell was positioned in the middle row of seats. Mason Amell slid open the side door and spoke with them.

42Unlike Janelle Fournier, Cody made no observations of the van as it proceeded away from them and down the road towards Spencerville. Further, the car that he was in did not pass by the accident scene but went directly to his friend’s house by another route.

43During cross-examination, Cody confirmed that he could not recall the conversation that took place between the individuals standing at the end of the driveway and the three young men in the van. He could not recall being concerned as he watched them drive away, but he would have been concerned had he seen the van swerving.

44Cody described the seating configuration inside the van. There were two pilot seats in the front. He could not recall whether the middle row consisted of a bench or pilot seats. There was an open space in the middle between the two front pilot seats. There were arm rests on the pilot seats that flipped up and down. He conceded that he had never climbed from the front to the back, between the seats. He was directed to his previous evidence when he was said to have testified that a driver and a passenger could easily switch places quickly. He clarified, however, that he had never seen people switch between the front and the back or middle seats.

Katelyn Weedmark

45Katelyn Weedmark drove a vehicle to and from the party with a group of people on board. She was not drinking because she had a sinus infection.

46Katelyn confirmed that upon her arrival at the party, she was questioned by Kaitlyn and Judy Utman about whether she was drinking and that they asked for her car keys. She assured them that she would not be drinking because of her sinus infection.

47Katelyn recalled seeing Tyler Curry at the party and was of the view that he had been drinking. She recalled seeing Dylan Heisel at the party, but could not recall seeing Mason Amell there.

48Katelyn spoke briefly with Tyler Curry at the party. She noted that he had “slower speech” than normal. She could “just tell” that he had been drinking.

49The van, with Tyler Curry behind the wheel, passed her as it was leaving the driveway while she was positioned just north of the Old Garage as depicted on Exhibit #1 Appendix “A”. She described the manner in which the van was leaving as “aggressively”. She clarified that it was the sound of the van as it passed her that made her think that it was leaving “aggressively”. She also recalled hearing “shouting” coming from the van. She did not see the van stop along the driveway. She could not recall whether she took her eyes off of the van as it proceeded out the driveway.

50Katelyn did recall, however, that she left the party “less than five minutes” after the van left, upon deciding who was leaving in the first car load with her. She and her group were engaged in that discussion when the van went by them and out the driveway.

51Katelyn took the same route as the van on the way home. Thus, she came upon the accident scene in short order. She saw what she thought was fog ahead, but it turned out to be smoke. It appeared to her like a shed was on fire. She sensed that it was the Curry van.

52Katelyn and her group arrived soon enough after the accident to see Tyler Curry and Mason Amell being helped into the back of a vehicle that had stopped to help. Both young men were seated with their knees to their chests facing out the back of the van.

53As Katelyn described, the people with her began to panic looking around the van to see if Dylan Heisel had been thrown out. By that time, the van was “completely in flames”.

54Katelyn recalled the fire trucks pulling up within moments of her arrival, perhaps within two minutes. She did not know the male and female who were attending to Tyler Curry and Mason Amell. She did, however, recognize Luke Casselman and Miranda Casselman (nee: Helmus) who were standing nearby, but not engaged in assisting in any way.

55Katelyn could see that Tyler Curry had been burned in the fire. She did not, however, make note of any injuries to Mason Amell.

Dr. Lauralyn McIntyre

56Dr. Lauralyn McIntyre assessed and provided care for Tyler Curry upon his arrival at the Ottawa Civic Hospital. The clinical notes and records related to Tyler Curry and this accident were filed as Exhibit #5. Dr. McIntyre’s initial impressions, apart from the apparent burns, included:

“Soft tissue swelling to the right side of the neck (p.10), soft tissue swelling to right chest area (p.12), and a non-displaced vertical fracture of the [right ankle] posterior lip of the tibia…un-displaced fracture of the medial malleolus extending into the mid-portion of the articulated surface…marked soft tissue swelling especially along the medial aspect of the lower leg and ankle (p.12)”.

57Finally, as noted on page 13, “Medial and posterior malleolar fractures. No evidence of proximal fibula fracture.”

58Dr. McIntyre explained that her role was to stabilize the patient and to collaborate with plastic surgery in relation to the severe burns that Tyler Curry had sustained, all with a view to having him transferred to a burn unit at a another hospital.

59Dr. McIntyre assessed that Tyler Curry had sustained second and third degree burns. Moreover, there was evidence that his nose hair was burned, thus there was concern that his throat and lungs had been burned as well. On page 45 we read (and Dr. McIntyre explained), “Spencerville – found outside van…R [right] arm and R [right] chest 18% burns…ETOH + [presence of alcohol] 2^nd and 3^rd degree burns.” On page 46, we see a diagram of Tyler Curry’s back that shows “...burns and blistering to his left side back and shoulder…burns and charring to his right side back and shoulder and a reddened area at or near his tail bone.” The diagram depicting his front shows “second degree burns to his throat…third degree burns to his right side chest, bicep and shoulder… second degree burns to his right forearm…burns to the top of his right upper leg…a swollen and bruised right ankle and an abrasion to his left knee”.

60Dr. McIntyre explained that “burns with charring” equates to third degree burns, and “burns with blistering” equates to second degree burns. The reddened area “could have been first degree burns”.

61Dr. McIntyre clarified that the notation of 18% of the body surface area being burned actually represented something more in the range of 25% to 30%.

62On page 29 there is a notation that at 4:09 [a.m.] on August 23^rd, Tyler Curry’s blood alcohol measured 44 mmol/L. Thus, the hospital analysis of the serum/plasma portion of the blood sample revealed an alcohol concentration of 44 millimoles of alcohol in one litre of serum/plasma. Put another way, as recorded in the affidavit of toxicologist, Betty Chow, filed as Exhibit #3, at approximately 2:15 a.m. on August 23^rd, Tyler Curry had a projected blood alcohol concentration (BAC) of 169 to 219 milligrams of alcohol in 100 millilitres of blood.

63On page 62 we note that the percentage of burned surface area was increased to 25% to 30%. However, as Dr. McIntyre explained, what was most concerning to her was the circumferential nature of the burns, meaning that, for example, the burns went all the way around the right arm, potentially blocking blood flow.

64During cross-examination, Dr. McIntyre was not able to offer any opinion regarding the mechanism of Tyler Curry’s ankle injury or injuries related to airbag deployment.

65Dr. McIntyre clarified that she did not actually look at the burns, given that the plastics specialists had bandaged the areas and she was not about to remove the bandages. She did note, however, that plastics did nothing in relation to the left side of Tyler Curry’s body.

Cindy Amell

66Cindy Amell attended to her son when he was initially taken to the Kemptville Hospital and later when he was transported to the Ottawa Civic Hospital.

67In terms of injuries, Cindy observed cuts on his nose as well as on his forehead at the start of the hairline and into the hairline, as she described. Further, he had chipped teeth that required extensive dental work to repair. Notably, the only burns that he suffered were to the toes of his left foot. Finally, she was told that he suffered a concussion in the crash.

68Mason Amell’s injuries were such that he was delayed in commencing his hockey season that fall; he had previously played Jr. “B” hockey for the South Grenville Rangers and was slated to return to the team. Moreover, as Cindy described, her son suffered some residual depression following the accident.

69During cross-examination, Cindy conceded that she could not recall which doctor told her that her son had suffered a concussion, but she did recall that she was told that at the hospital on the 23^rd of August.

70Produced to Cindy and marked as Exhibit #27 was a document purportedly written by Miranda Casselman as a Facebook post, which appears to have been prepared shortly after the events of August 23^rd. Cindy confirmed that this document had very recently been brought to her attention by a friend, and that Cindy had, in turn, handed the document over to the police.

David Allan

71David Allan attended the accident scene and prepared the Ambulance Call Report, marked and filed as Exhibit #7, as a member of the United Counties of Leeds and Grenville EMS.

72The ambulance crew was mobilized from the base in Prescott at 02:24:00. They arrived at the scene at 02:38:00. They began to assess the patients at 02:39:00.

73Upon arrival, Allan noted that a fire crew was already in attendance. He attempted to approach the van; however, it was still on fire. Tyler Curry and Mason Amell were positioned in the back of a civilian van. Allan described that Tyler Curry was clearly more acute than Mason Amell, having suffered extensive burns. Mason Amell’s subjective complaints related simply to right side pelvis pain and lacerations to his forehead and nose. Further, on examination, Mason Amell’s subjective complaints were consistent with what EMS found: right side pelvis pain.

74Mason Amell reported that he was positioned in the “rear seat” of the vehicle and that he was “belted”, which is captured under the heading “Chief Complaint/Incident History” in Exhibit #7. Further, Mason Amell reported that he had consumed seven to eight beers over the evening, which is also reflected on page 3 of Exhibit #7.

75During cross-examination, Allan explained that, in his view, an abrasion is distinguishable from a laceration. The former is more of a scrape, whereas the latter is when the skin is broken and bleeding.

76Allan conceded that his assumption that this had been a rollover accident was incorrect.

77Allan confirmed that the subjective, right side pelvis pain of which Mason Amell complained was consistent with pain that other belted drivers often report.

78Allan conceded that a person could break their ankle from exiting a vehicle on a sloped surface, as well as during a motor vehicle accident.

79Again, Allan confirmed that Mason Amell reported consuming seven to eight beers over the evening.

80Upon re-examination, Allan clarified that, apart from consuming seven to eight beers over the evening, Mason Amell could not provide a more detailed timeline with respect to his consumption of alcohol.

81Finally, Allan clarified that nowhere in his report was there any mention of an abrasion-type injury to Mason Amell’s face. To that point, he said, “If it was significant I would have put it in there”.

Darren Thorpe

82Darren Thorpe attended the scene of the accident as a member of the Edwardsburg/Cardinal volunteer fire department and fire captain.

83Thorpe recognized both Tyler Curry and Mason Amell as he had been the trainer of the hockey team on which both young men had previously played.

84Thorpe assessed the two young men as they were seated in the back of the civilian van. They both appeared to be in a state of shock, however, their facial expressions indicated that they recognized him. Thorpe believed that the interior light of the van was on due to the fact that the back hatch door was open.

85Thorpe applied some “burn gel” that he had in his bag, which he described as having a very strong smell. He also recalled trying to administer oxygen to both young men.

86It was perhaps 10 to 15 minutes after his arrival that he learned of a third person potentially being in the van. He asked both young men whether there was anyone else with them in the vehicle, but got no response.

87He made no observations regarding their state of sobriety and explained that the strong smell of the “burn gel” may have masked the odour of any alcohol.

88He remained with both young men until the land ambulance arrived.

89During cross-examination, Thorpe described the extensive nature of Tyler Curry’s burns by referencing the 360 degree characteristic of the injuries (circumferential). Mason Amell, in comparison, may have had “a little redness on his neck”, on which he applied the “burn gel”.

90Thorpe described that the van was fully engulfed in flames when he arrived. He could not recall if any of the windows were still intact and he could not recall if any of the doors of the vehicle were open.

Gregor Moffat

91Gregor Moffat attended the scene as a critical care flight paramedic. He was also the note-taker with respect to the Air Ambulance Call Report that was filed and marked as Exhibit #8.

92Moffat conceded that his reference in the report to there being a fourth person involved in the accident was wrong, based on information that he received from the land ambulance attendants.

93Moffat focused entirely on Tyler Curry as he was the more critical of the two. He assessed that Tyler Curry was confused and had the odour of alcohol on his breath. As his report sets out, “The patient had 18% 2^nd degree burns to the right half of his torso and right arm circumferential”. Moffat also noted charring in the head and neck region and singed eyebrows. Further, the patient’s hair was singed around the forehead. There was 1% burn to the back of his neck as well as 9% of his right side chest having 2^nd degree burns. Finally, his right arm had 2^nd degree burns covering 9%, which were also circumferential in nature.

94During cross-examination, Moffat conceded that he did not diagnose a broken ankle. He further conceded that a person involved in a motor vehicle accident could conceivably break their ankle regardless of where they were position in the vehicle.

95While Moffat speculated that an individual could possibly suffer scrape marks, chipped teeth and lacerations to their face as a result of an airbag deploying during an accident, he conceded during re-examination that any such injury would be dependent on the speed of the vehicle when the airbag was deployed and the distance that the individual was sitting relative to the airbag. All of that said, Moffat admitted that he could not provide any specific details to support the earlier contention regarding potential injuries resulting from airbag deployment during an accident. Notably, Moffat was never questioned about the difference in injuries, if any, caused by first generation airbags as opposed to second generation airbags.

Dr. Shawn O’Donnell

96Dr. Shawn O’Donnell was the Emergency Room physician who attended to Mason Amell at the Kemptville Hospital. His curriculum vitae was filed and marked as Exhibit #9, along with the clinical notes and records related to Mason Amell’s admission and care, which were filed and marked as Exhibit #10.

97To recall, Mason Amell was initially stabilized at the Kemptville Hospital before being transferred to the Ottawa Civic Hospital. Dr. O’Donnell saw Mason Amell upon the patient’s return to the Kemptville Hospital.

98Dr. O’Donnell’s initial impressions were that Mason Amell was complaining of right hip and right shoulder pain. Further, there was some concern that he may have suffered a head injury and thus was sent to Ottawa for a C.T. scan. There were also burns to the toes of the left foot.

99The clinical notes indicate that Mason Amell presented with dizziness and nausea. Moreover, he appeared to be intoxicated and was acting inappropriately.

100Dr. O’Donnell further assessed that Mason Amell had an injury to his lower incisors, an abrasion on his forehead and abrasions to his arm, legs and feet. Thus, Dr. O’Donnell diagnosed motor vehicle accident with contusions and acute grief.

101Dr. O’Donnell clarified that although there was no complaint of a head injury when Mason Amell arrived back from Ottawa and there was a clear C.T. scan, most concussions will have negative C.T. scans. Further, there is a much greater awareness today of head injuries than there was seven years ago. In summary, he was of the view that Mason Amell suffered some kind of a concussion as a result of the accident.

102While Dr. O’Donnell conceded under cross-examination that there was a possibility of suffering a trauma-type injury to the face and head from an airbag deploying, he qualified his answer during re-examination by saying that he had most often seen injuries to shoulders and wrists from airbags. Further, he could never recall seeing an injury to teeth that was caused by an airbag deployment. A broken nose was, in his view, a more common injury arising out of an airbag deployment. Notably, Dr. O’Donnell was never asked about the differences in injuries, if any, as between first generation and second generation airbags.

103Similarly, although he conceded that it is possible to suffer an ankle injury, such as that suffered by Tyler Curry, by jumping out the window of a vehicle, he clarified that it was not his area of expertise and that an orthopedic specialist would be better qualified to answer that question.

Constable Stewart Unhola (retired)

104Cst. Stewart Unhola was the Ontario Provincial Police (O.P.P.) Traffic Reconstructionist assigned to investigate this accident. His curriculum vitae and Technical Traffic Collision Investigation Report were filed and marked collectively as Exhibit #11. He had been retired for approximately six months at the time of this trial. Notwithstanding, Cst. Unhola was qualified to give expert opinion evidence in the following areas: traffic collisions; mechanical fitness; and “black box” data retrieval and interpretation.

105Cst. Unhola arrived at the scene at 4:24 a.m. on August 23^rd. Dylan Heisel was still in the van. Cst. Unhola was present when the extraction of Dylan Heisel took place using the “jaws of life”. Further, Cst. Unhola was present when Cst. Larry Kemp took the photographs filed and marked as Exhibit #12, which were completed while Dylan Heisel was still in the vehicle. Thus, the photographs were completed prior to the vehicle being physically manipulated.

106In Cst. Unhola’s opinion, the accident occurred in the following manner. The 2000 model year Pontiac Montana van, registered to Tyler Curry’s mother, was travelling southbound in the west lane of County Road 44, when it left the roadway in a gradual manner and entered the west side, grassy ditch. As the van left the roadway, it slid across a concrete culvert which did little, if anything, to inhibit the speed of the vehicle.

107The roadway in the area of the accident was an 80 km/h posted zone with relatively new asphalt (approximately 10 days old) and roadway markings.

108Based on the data that was downloaded from the “black box”, the van was travelling at an approximate speed of 165 km/h, or 103 miles per hour, at 100% throttle, as it initially entered the grassy ditch. To recall, it is admitted that approximately two seconds prior to the collision the van was travelling at a rate of approximately 101 to 104 miles per hour.

109The van travelled 85 meters across the grassy ditch before impacting with a single tree.

110The right front corner sustained the brunt of the impact with the tree, which caused the van to crush at that point a distance of approximately 1.5 meters back.

111The crushing of the right front corner caused the vehicle to completely deform, thus stretching the left side wheelbase over 1 meter in length. Further, the right side “A” and “B” pillars were pushed together, the driver’s door hinges were broken from the door’s overextension, and the driver’s door latch failed, resulting in the door opening.

112Thereafter, the force of striking the tree on the right front corner caused the van to rotate and slide to its final resting position.

113In the course of rotating, the driver’s door, with its broken hinges and failing latch, opened and became detached, coming to rest at a different location than the van. Thus, the driver’s doorway was open and free from obstruction as the van slid to its final resting position.

114The van rotated approximately 180 degrees and came to rest pointing north, more or less, as depicted in Cst. Unhola’s scale drawing of the accident scene, which was appended to his report.

115Either contemporaneous with the impact, or immediately thereafter, the van caught fire.

116Again, there is no question that Dylan Heisel occupied the right front passenger’s seat at the point of impact. In the area of the right front corner, the floor pan collapsed to the point that Dylan Heisel’s feet became trapped by the debris. Further, it appeared as though his ankles were broken.

117The roadway in the area of the accident was level and straight. The area was not lit. The conditions were mainly clear, however, the moon was below the horizon providing no illumination. As Cst. Unhola noted under “General Collision Scene” observations, it was very dark when he arrived at the scene.

118Cst. Unhola confirmed that the complete front end of the van was damaged during the collision, however, the damage was obviously more significant to the right front and side of the vehicle. Further, the “sub-floor”, previously described as the floor pan or toe pan, was pushed back, and the right side passenger’s sliding door was bent out.

119Cst. Unhola was of the opinion that the right side passenger’s sliding door was bent outward as a result of the significant crushing to the right front corner upon impact with the tress. Alternatively, he has seen that sort of outward bending caused by an occupant being thrown against a door.

120Cst. Unhola confirmed that there was no glass left in the van when he inspected it.

121With reference to photo’s 29 and 30 of Exhibit #12, Cst. Unhola confirmed that the crushing on the right passenger’s side was up to the front of the passenger’s seat, which accounts for the nature by which Dylan Heisel was trapped. Further, Dylan Heisel’s body was located between the two front seats.

122Cst. Unhola confirmed that the occupant restraint system (seatbelts) was compromised by the fire damage, meaning the belt material was gone. Further investigation revealed that both front-seated persons had been buckled at the time of the collision. However, Cst. Unhola determined that neither of the male parts were inserted into the female parts with respect to either of the middle two seats post-accident.

123With reference to photo 13 of Exhibit #12, Cst. Unhola confirmed that the driver’s seat armrest was in the down position at the time of the collision.

124With reference to photos 135 to 143 of Exhibit #12, it is evident, and Cst. Unhola confirmed that, apart from some burning to the right rear part of the bumper, the balance of the bumper and the right rear corner were the only parts of the vehicle that were free of damage following the collision and the fire, relatively speaking.

125With reference to photo 140 of Exhibit #12, Cst. Unhola noted that the left side sliding door had been removed at some point, however, it was in place and closed when he conducted his investigation of the vehicle at the scene. He did not try the door (to see if it would open) due to the extent of the fire damage.

126Cst. Unhola explained that the exhaust manifold is the hottest part of the engine. In this particular vehicle, the exhaust manifold is made of cast iron and runs from the engine block to the exhaust system.

127As a result of his investigation, Cst. Unhola was of the opinion that the vehicle was mechanically fit to be on the highway at the time of the accident. Put another way, the accident was not the result of some mechanical failure.

128During cross-examination, Cst. Unhola confirmed that there were a number of flammable liquids contained within the engine compartment. There was a reservoir for oil, power steering fluid, and a reservoir for transmission fluid in this front wheel drive vehicle. Further, over time, leaks occur that cover the engine with oil and grease. There was also a fuel rail system that delivered fuel to the engine from the fuel tank.

129Cst. Unhola confirmed that he had seen doors ripped off in relation to other accidents, similar to the way in which the driver’s door came off in this case. Put simply, the left side of the body was stretched sufficiently enough that the door was pulled beyond its locked position and thus became unhinged when the vehicle was rotating.

130Notably, Cst. Unhola explained what data with respect to speed and braking was retrieved from the “black box”, as set out on page 3 of Appendix “E” to his report, marked as Exhibit #11. At five seconds before the accident, the van was travelling 103 mph at 4608 rpm (engine revolutions per minute) and 100% throttle. At four seconds before, we see 104 mph at 4608 rpm and 100% throttle. At three seconds before, we see 101 mph at 3968 rpm and 0% throttle. At two seconds before, we see 9 mph at 768 rpm and 0% throttle. At one second before, we see 1 mph at 960 rpm and 0% throttle. Further, in the column dealing with brake application, from eight seconds down to three seconds before the accident, there is no evidence of a brake application. The brake switch was engaged two seconds prior to the accident.

131Thus, in Cst. Unhola’s opinion, at two seconds before impact, the driver made a brake application.

132Cst. Unhola explained that the data collected by the “black box” in this particular model relative to the occupant restraint system pertained to only the driver’s seat. Contrary to his visual inspection, on page 3 of Appendix “E”, the driver’s side belt switch indicated “unbuckled”. However, as Cst. Unhola pointed out with reference to page 1 of Appendix “E”: “If the vehicle’s electrical system is compromised during a crash, the state of the Driver’s Belt Switch Circuit may be reported other than the actual state.” Again, his visual inspection concluded that both male parts were inserted into both female parts for both the driver and passenger seats, post-accident.

133Cst. Unhola could not determine whether there was a console in this particular vehicle between the two front seats. The fire damage was simply too extensive.

134With reference to photo 15 of Exhibit #11, Cst. Unhola confirmed that the distorted ring of metal is, in fact, the passenger side sliding doorframe. He did not measure the width of the opening, but agreed that it would have been at least 18 inches wide. Similarly, and with reference to photo 26 of Exhibit #11, Cst. Unhola conceded that a person could have exited through the window opening of the passenger side sliding door.

135Cst. Unhola confirmed that the plastic weave material out of which the seatbelt material was made was not fire resistant.

136Cst. Unhola explained that, in his opinion, the driver’s door did not simply fall off when someone opened it. The door was located approximately two meters in front of the van and closer to the passenger’s side of the van, which is the basis for his opinion that the door became unlatched as a result of the left side of the van being stretched upon impact, the door hinges failing, the door becoming detached and following the van through its rotation to its final place of rest.

137Cst. Unhola conceded that, apart from the flammable substances found within the engine compartment, there are volatile fluids found throughout the entire body of the vehicle. Further, there are a number of hot surfaces aside from the exhaust manifold.

138During re-examination, Cst. Unhola was directed to photo 140 of Exhibit #11 depicting the rear bumper of the vehicle, which appears to be the only part of the vehicle not touched by the fire, suggesting that the origin and cause of the fire was not at the rear of the vehicle.

Michelle Coleman (McPhail)

139Michelle Coleman (McPhail) and her spouse at the time, David McPhail, along with their three children, were returning from the drive-in located in Port Elmsley when she saw a fire at a distance that she estimated to be approximately two kilometers away to the north. They were travelling north on County Road 44 at the time.

140At first it appeared to Michelle to be a bonfire. After driving for what seemed like a couple of minutes, she could see that the fire was on the opposite side of the road, in the ditch.

141Michelle was seated in the front passenger’s seat of their minivan. Her husband was driving.

142When they pulled up, she saw a man and a woman standing with two young men next to a car. The young men were closer to the back of the car, and they had their hands on the roof of the car.

143She could then see that it was a van that was on fire. Specifically, the front of the van was on fire from the hood back to the windshield. She could not see flames at any point other than at the front of the van.

144Michelle is a Registered Practical Nurse by training.

145Michelle and David asked whether a 911 call had been made. The woman confirmed that one had been made. David then suggested that they move the vehicles, theirs and the couple’s, away from the van in case it exploded. David moved their vehicle, while Michelle walked down the road with the two young men.

146Michelle noted that the taller of the two young men (Mason Amell) had lacerations to his face, and cuts and scrapes to his arms. The shorter of the two (Tyler Curry) had very bad burns to the upper part of his body. Further, the shorter of the two had his shirt burnt off. She could smell alcohol on both of them.

147David opened the tailgate of the minivan and sat the two young men down in the opening. She noted that the shorter of the two had burns to his arms and to the back of his head. Some of his hair was singed off. Pieces of his shirt were still on fire. She pulled embers out of his back.

148The taller of the two got up and was wandering around. Michelle stayed with the shorter one. Firefighters arrived. Michelle assisted a firefighter in applying burn packs. In approximately five to 10 minutes, a land ambulance arrived. The ambulance took the taller of the two first and then took the shorter.

149Thereafter, a carload of teenagers arrived. They were screaming “where’s Heisel”, referring to Dylan Heisel. Recall that Katelyn Weedmark estimated that the vehicle she was driving, ferrying partygoers home, departed the Utman residence approximately five minutes after Tyler Curry left the party driving his mother’s van with Dylan Heisel and Mason Amell onboard.

150Michelle and David were still at the accident scene following the departure of the ambulance. They would eventually prepare written statements, which David took back to the scene and handed over to the police.

151During cross-examination, Michelle confirmed that when they arrived, she saw the fire from the front of the van back to the windshield. As she put it: “that’s as much of the fire as I saw”. She could not say whether there was any fire at the back of the van.

152Michelle conceded that she mixed up the names of the young men in her written statement, but explained her mistake was based on the manner in which they provided their names to her.

153Michelle also recalled that the two young men said there was no one else in the van with them.

154Michelle noticed that their speech was slurred, in addition to an odour of alcohol on both of them.

David McPhail

155David McPhail is a driver by profession, having worked many years for Grand and Toy. As a matter of habit, he routinely looks at the clock in his vehicle to note times of events.

156He, Michelle and their children were returning from the Port Elmsley drive-in after 1:00 a.m. on August 23^rd when the movie ended. He was driving their 1996 Ford Windstar Van with Michelle next to him in the front and their children in the back.

157Neither he nor Michelle had consumed any alcohol.

158They were travelling northbound from Spencerville on County Road 44 when a fire drew his attention. He estimated that they were a kilometer and a half away when he noticed the fire. By the time that they were a half a kilometer away, he could tell that it was a van on fire.

159There were four people standing by a vehicle when they pulled up, two young men who were injured and a male and female who had stopped to help.

160David noted that the front end of the van was on fire, meaning the engine compartment. The fire had moved back into the first two seats of the van, but the fire had not gone any further back at that point.

161Notably, David, as a matter of habit, had looked down at the clock in their van when he first noticed the fire. The clock read 2:18 a.m. Admittedly, the clock could have been off by a couple of minutes. He explained that as a professional driver, he routinely looks at the clock in the vehicle to note “driver time in” and “driver time out”.

162David asked if a call had been placed to 911. The female said that a call had been made.

163David then noted that the fire was growing in height and that it was moving towards the back of the van. He was concerned that the van may explode, so he suggested that they move the two vehicles farther away from the burning van. David moved their vehicle while Michelle got out and walked down the road with the two injured young men.

164David had no further contact with the male and female.

165David estimated that it took about 10 to 15 minutes for the fire department to arrive, once he and Michelle had the two young men seated in the back of their minivan.

166Suddenly and without warning, the burning van exploded. As David described: “We had pieces of flame dropping near us”.

167David distinguished between the two young men by referring to one as the “taller skinnier” (Mason Amell) and the other as “the shorter and a little chubbier” (Tyler Curry).

168At one point, David heard the taller skinnier one reply to a firefighter, “Ya, we’re fucking drunk”, or words to that effect.

169At some point, a group of teenagers showed up and began screaming about someone else being in the burning van.

170David clarified that when he first pulled up, the flames were only a few feet above the windshield.

171David noted that the taller skinnier one had some cuts on his arms and face, but that he was not as badly injured as the other fellow. The shorter chubbier one had a lot of burns.

172During cross-examination, David described that the shorter one had burns to his torso, and there were burns to the back of his head and the back of his neck. David could remember smoke coming from what was left of the fellow’s shirt.

173David explained that the taller skinnier one was more responsive to his questions. To recall, it was that fellow who, after a few prompts, said, “Ya, we’re fucking drunk”, or words to that effect. David specified that it was to a firefighter that this admission was made.

174During re-examination, David clarified that he saw the fire move back to the first two seats of the van as he was standing there. Further, the fire was moving from the front of the van to the back.

Sergeant Brad Muir

175Sergeant Brad Muir of the O.P.P was qualified to give expert opinion evidence in the general area of motor vehicle accident reconstruction as more particularly defined in Exhibit #1 filed on the voir dire, specifically:

1. Speed determination:

a. Based on vehicle sliding and skidding;

b. Through conservation of momentum, including Delta V (change in velocity) calculations;

c. From vault or fall calculations.

2. Vehicle damage analysis.

3. Vehicle dynamics: interaction between vehicle and going off road and striking an object.

4. Occupant kinetics:

a. Mechanism of injury/occupant injury, including principle direction of force;

b. Change in velocity (Delta V) as it relates to collision severity.

5. Event Data Recorders:

a. EDR in passenger vehicles and light duty trucks;

b. Specifically, EDR’s used by GM, in this case, third generation Delphi EDR’s;

c. Data analysis and interpretation of data from EDR’s;

d. Accuracy and reliability of EDR’s.

6. Limitations of Computer Crash-Simulation Software:

a. In particular, PC-crash and HVE software.

7. Vehicle Fires Post-Impact:

a. Areas of ignition sources;

b. Propagation of fires.

8. Safety components on Montana vans.

176The defence conceded that Sgt. Muir was qualified to give expert opinion evidence in all but two of the areas set out above, specifically: 4(a) under occupant kinetics – mechanism of injury/occupant injury, including principle direction of force; and 7 – Vehicle fires post-impact.

177With respect to the latter, the Crown agreed to circumscribe Sgt. Muir’s evidence to three specific areas of inquiry:

1. The layout of the engine components within the engine compartment;

2. Flammables that may be found within the engine compartment; and,

3. Potential sources of ignition.

178Sgt. Muir confirmed that he had reviewed Cst. Unhola’s work/report with a critical eye, which is in keeping with his role as a lead Reconstructionist. Moreover, Sgt. Muir conducted his own analysis of the data that was downloaded from the EDR or “black box”. The results that he turned up corresponded exactly with Cst. Unhola’s conclusions.

179Sgt. Muir confirmed that five seconds before the crash, the van was travelling at a speed of 103 mph or 160 kph. The next reading increased to 104 mph. The driver’s foot then came off of the accelerator pedal or the throttle, which dropped to 0%. There was then a very slight decrease in speed to 101 mph.

180Of concern to Sgt. Muir was the fact that the van was by then travelling off road across uneven terrain, as well as grass or dirt. As he explained, these types of surfaces do not offer the same resistance to a vehicle braking as does a roadway. This accounts for the drastic reduction in speed as recorded within the final two seconds before the crash at 9 mph, which accords with when the brakes were applied. As Sgt. Muir explained: the brakes had been applied and it was the inability of the antilock brake system to release the wheels, going over the off road terrain, resulting in an inaccurate rate of speed in the final two seconds. Accordingly, Sgt. Muir’s opinion was that the speeds at minus five, four and three were the most accurate speeds leading up to the impact. To that end, he also considered the RPM’s recorded for the EDR and the throttle application, or the totality of the data.

181Sgt. Muir confirmed that in this model year of Montana, only the driver’s seatbelt status was recorded by the EDR. He noted that it was recorded as “unbuckled” at the time of the crash. However, in his opinion, this is explained by the catastrophic collision that would have taken out the battery, which was located just behind the right front headlight. Further, this anomaly is confirmed by the literature that says if the vehicle’s electrical system is compromised during a crash, the state of the driver’s belt switch circuit may be reported other than the actual state. In Sgt. Muir’s opinion, the driver’s seatbelt was buckled at the time of the crash, as depicted in the photographs taken post-crash.

182The Delta V accounts for the change in velocity, or how much the speed was changed as a result of the collision event. The Delta V does not begin recording until the actual crash has begun. The maximum velocity change recorded by the airbag control module was 30.72 mph in 100 milliseconds, or between 49 and 50 kph. Further, Sgt. Muir confirmed that the Delta V recording corresponded with the damage that is evident to the tree.

183Sgt. Muir cautioned that the Delta V event may even have under-recorded as a result of the EDR, which was situated under the right front passenger’s seat, being damaged in the crash and changing directions. Put simply, he was confident that the Delta V would not have been less than 30 mph.

184Sgt. Muir confirmed that the 2000 model year Montana was equipped with second generation (depowered) front seat airbags and front seatbelt pre-tensioners, which factored into his analysis of occupant kinetics and potential injuries suffered by the driver specifically.

185Sgt. Muir explained that first generation airbags created greater potential for injury caused by the opening velocity of the deployment speed of the airbag. Second generation airbags had a reduced force on deployment, which was meant to reduce injuries.

186This particular model year of Montana had captain’s chairs in the middle row with a lap and shoulder belt assembly, however, there were no pre-tensioners on the shoulder belts. As a result, there could be slack in the belt that would not be taken up in the event of a crash.

187This particular model had plastic cladding on the backs of the front seats, with a cargo net over top to hold items. Further, it had flip-down armrests for both front seats. Sgt. Muir could not recall that there was a centre console in this model. There was, however, a flip-down, two-cup, cup-holder on the front passenger seat, as well as a cargo net that stretched between the two front seats.

188With respect to the latter, Sgt. Muir owned the Chevrolet equivalent of this van when his children were young. At 5’6” and 170 lbs at the time of owning the van, he described that it would have been possible, but awkward, to move between the front seats and the back, within the confines of the van.

189Sgt. Muir confirmed that this particular model year was not equipped with knee-bolster airbags, which were not standard equipment until the 2009 model year. As a result, front passengers would suffer injuries to their lower extremities, knees and legs, by “submarining” when their hips slipped forward on the seat and knees and legs struck the knee-bolster. Sgt. Muir witnessed these sorts of injuries sustained by the human test dummy, Rusty Haight, with whom he worked with for many years. Rusty would wear ball catcher’s knee and shin pads to protect against knee-bolster injuries. Further, he would refuse to undertake a crash while making a brake application or having his foot on the accelerator for fear of sustaining an ankle injury.

190Sgt. Muir provided his opinion with respect to the events immediately leading up to and following the crash. As the van left the roadway and was heading across the grassy ditch, it began to rotate a little bit counter-clockwise, which is evident by the way the two tire marks became four tire marks, as depicted in the photographs. The right front corner of the van struck the tree, crushing and shortening it with enough force that the metal bent and the driver’s side was elongated.

191At this point, the occupants continued moving in the direction that the van was travelling, whether restrained or unrestrained, until other forces overtook them. For the restrained occupant, it would be the seatbelt. For the unrestrained occupant, it would be a collision with an object or objects within the vehicle.

192When the van struck the tree, the driver would have moved inboard, or to the right. For an occupant in the right middle passenger’s seat, the same would be true; he would be moving to the outside edge of the vehicle, with the possibility of that person being up against the passenger sliding door.

193At the point in time when the driver’s side elongated, the driver’s door opened and was ripped off. Then came the onset of the rotational acceleration, when the vehicle began rotating dramatically in a clockwise direction after striking the tree. This would have coincided with the rear end of the vehicle lifting off the ground.

194As the vehicle began to rotate clockwise, the occupants would begin to catch up with it, as long as they were attached to the vehicle (seat-belted) or in contact with something in the vehicle. Thus, they would begin to go in the direction of the rotation.

195The van then began to slide sideways through the dirt, which caused the vehicle to slow down. The occupants would then have begun to slow down at the same rate as the vehicle.

196Sgt. Muir described the layout of the various components within the engine compartment, including the potential flammable liquids that were present. This particular vehicle had a transverse mounted or side-ways V6 engine. The power steering reservoir for the power steering fluid was located on the right (passenger’s) side, in front of the engine. The power steering pump was also located in that area, as well as the windshield washer-fluid reservoir. As Sgt. Muir explained, power steering fluid is flammable and windshield washer-fluid contains some component of alcohol, which is also flammable. Further, the filler dipstick for the transmission and the oil filler for the engine are also located in the engine compartment. Finally, on top of the engine, but more to the driver’s side, was the reservoir for the engine coolant. All of those components contained flammable liquids, not to mention the engine oil and the transmission oil.

197Sgt. Muir then considered that the engine, five seconds prior to the crash, was running at slightly more than 100 mph, or 160 kph, at 4600 rpm’s. Moreover, it was a warm summer’s night.

198Sgt. Muir considered his research of the literature that looked at the potential for ignition between flammable liquids and certain components of any vehicle, specifically, the engine manifold, catalytic converter and the exhaust pipe.

199In terms of his experience, Sgt. Muir explained how he had worked with a Mr. Bill Davies from GM in attempting to replicate scenarios in which ignition would occur when flammable liquids were sprayed on hot engine components. A vehicle would be driven around a track to build up speed, and thus heat. The vehicle would then be stopped and the flammable liquid applied quickly before the engine could cool down. The hottest component was the exhaust pipe just back of the exhaust manifold. Only a small amount would be sprayed on to see if it would smoke or produce a visible flame. It would indeed ignite, as Sgt. Muir witnessed.

200In addition to the potential for ignition resulting from the buildup of heat, Sgt. Muir was asked to comment on potential sources of ignition found within the engine compartment. In Sgt. Muir’s opinion, one of the areas of greatest concern was the battery, because the battery has a lot of stored energy. The biggest concern, in his view, was the potential for the battery to short out against the metal within the vehicle and cause a spark that ignited vapour under the hood from one of the flammables that was present. To recall, the battery was located just behind the right front headlight, which is the area that took the brunt of the crash and the subsequent crush.

201With respect to the glass in the van, Sgt. Muir described the difference between how the windshield responds in a crash, versus the rest of the glass. The windshield is essentially two sheets of glass with a plastic lamination in between. It is designed not to break completely out so as to provide protection from objects coming into the vehicle. However, the remaining glass is safety glass, which is designed to break into small cubes. In a crash of this severity, Sgt. Muir was not surprised to see that most, or all, of the safety glass was broken out of the vehicle, particularly given the shortening of one side and the elongation of the other side. That said, there still would have been the remnants of some safety glass around the edges of the windows.

202Focusing then on the bulkhead, or firewall as it is sometimes called, Sgt. Muir was not surprised to find that it had been compromised, given the Delta V event. A further consideration, in his view, was the concentration of the crash to the right front passenger side of the vehicle. Put another way, the crash was not spread out. Rather, it was very focused on that right front corner.

203Sgt. Muir was given an opportunity to review the medical records of both Tyler Curry and Mason Amell. He was also given an opportunity to see Mason Amell’s residual scars in advance of the trial. He noted a scar at the hairline, more to the left side of the scalp, which he estimated to be approximately three inches long. He also noted a scar to the bridge of the nose, which was approximately a half inch long. On Mason Amell’s right arm, there were about five small scars that he could see, smaller ones on the top of the forearm and a large one around the elbow, being about one centimeter square, and then another, about ¾ of an inch long on the back of the right arm. Mason Amell also showed him the residual burn scarring on the toes of his left foot.

204Based on Sgt. Muir’s reading, training and experience, it was his opinion that the injuries suffered both by Tyler Curry and Mason Amell were consistent with the Delta V event in this case. Further, his opinion was premised on Mason Amell being belted and seated in the captain’s chair located immediately behind the right front passenger’s seat. Tyler Curry, in his opinion, was positioned in the driver’s seat and was thus afforded the protection of the second generation airbag. If Tyler Curry was wearing the seatbelt at the time, as opposed to it being done up behind him, he would have been afforded additional protection.

205Sgt. Muir estimated that, in terms of his experience, he has investigated hundreds of front-end impact accidents in the same range of Delta V numbers because, as he put it, the “Delta V is probably in the sweet spot of the calls that my unit does. That’s the severity of the collision that we’re typically involved in and, by far, the majority of those have been frontal collisions”.

206Dealing then with ankle injuries suffered by occupants in Delta V events of this magnitude, it was Sgt. Muir’s opinion that it is the mechanism of injury that is most often seen in front-seat occupants, for at least two reasons. Firstly, with respect to drivers, it is the brake pedal that sets up the mechanics of the injury. If you have your foot on the brake pedal, applied with some force, and you then have a collision, the forces are much greater. That will set up the rotation of the foot to contribute to a malleolar ankle fracture. Secondly, the geometry of the floor or toe pan, coupled with the manner in which front-seat occupants place their feet on it, produce direct force on the feet and ankles. As Sgt. Muir explained, even if the occupant is belted, there is an element of “submarining”. Thus, it is the combination of your feet moving forward and the floor or toe plan being pushed back that increases the forces on the feet and ankles. In contrast, the floor geometry for the second row passengers is not the same. Rather, the floor is flat, as opposed to being turned-up at the bulkhead.

207To be fair, however, Sgt. Muir cautioned that the literature in this particular area of study, for the most part, focuses on front driver and front passenger studies. He could only find one study that touched on second-row occupants. That said, it was Sgt. Muir’s opinion that the studies that he had reviewed found that malleolar ankle fractures are the primary front-seat occupant injury. Further, right malleolar ankle fractures are most common in drivers.

208Dealing then with the facts of this case, Sgt. Muir considered the EDR data which shows that for the last two samples taken prior to the crash, the brake is on. Notably, he also pointed out that the brake pedal was “applied with great force, sufficient to actually lock the wheels”. This, in his view, accounts for the “substantial speed drop”. As he pointed out earlier, because of the uneven terrain, the antilock brake system was not able to do its job properly… “that’s why we see the spin down…that’s an indication that the brakes weren’t lightly applied…there was heavy brake application”.

209With respect to facial injuries caused by airbags in front-end collisions, Sgt. Muir had never seen a laceration or lacerations of the nature suffered by Mason Amell. He had, in one case, seen a cut to the bridge of a nose caused by the occupant wearing glasses, but no other lacerations or scarring of the length or duration suffered by Mason Amell that was caused by the deployment of an airbag.

210Similarly, in all of his experience, Sgt. Muir had never seen chipped or broken teeth caused by the deployment of an airbag. In his words: “That’s what they’re designed to protect. They’re designed to stop you from impacting things like the steering wheel, the centre of the steering wheel and such that would cause injuries.”

211Dealing then with shoulder injuries, it was Sgt. Muir’s opinion that right side occupants commonly complain of right shoulder pain, and perhaps across the chest, because of the loading up of the shoulder strap on the shoulder. Conversely, occupants on the left or driver’s side would complain of left shoulder pain. Further, pelvic pain is typical in severe frontal collisions for occupants who are belted because that is where the force is applied by the lap belt ideally, across the hips, if worn properly.

212During cross-examination, Sgt. Muir repeated that ankle fractures are primarily suffered by front seat occupants in front-end collisions, based in large part on his reading of the literature. That said, some of the studies seem to show approximately one-third of cases result in this type of injury for front seat occupants. At least one study showed that right front passengers had the highest risk of ankle/foot injuries. Recall Cst. Unhola’s evidence that Dylan Heisel’s ankles appeared to be broken. As Sgt. Muir cautioned earlier, there was only one study that he came across that dealt with ankle injuries suffered by second-row occupants in front-end collisions. All of that said, Sgt. Muir remained committed to the view that malleolar type injuries are primarily suffered by front seat occupants in front-end collisions. Moreover, brake pedal geometry and the act of braking sets up drivers in particular for malleolar type injuries. However, Sgt. Muir conceded that there are potentially other methods of suffering an ankle injury in a head-on collision apart from being located in the front of the vehicle.

213Sgt. Muir agreed that skin abrasion type injuries, or friction burns, can result from the deployment of airbags, which is reflected in the literature in one article that he reviewed. Sgt. Muir pointed out, however, that there is a difference between injuries arising from first generation airbags as opposed to second generation airbags, which this particular model year Montana was equipped with. As Sgt. Muir explained, the timing and the manner in which the second generation airbags deploy is critical in terms of reducing the propensity for airbag related injuries. Put simply, the second generation airbags do not explode into the occupant. Rather, the bags are designed to be fully inflated by the time that the occupant reaches it, once the airbag has “already formed that protective layer”. Further, as Sgt. Muir said, “…it also has give to it (caused by venting)…specifically from the experience in generation one airbags, where they don’t want an injury caused by you hitting a firm airbag or by you hitting the airbag as it comes out. That’s the whole reason second generation (airbags) came out”. Thus, as Sgt. Muir said, “…on a second generation airbag and up, for the most part, it’s the occupant striking the airbag”, which for Sgt. Muir is a distinction of some importance when considering airbag injuries.

214Accordingly, Sgt. Muir conceded that there can be minor injuries that result from the interaction of an occupant and generation two airbags, but not lacerations. He cited, for example, abrasions that are seen on the wrists and the ball of the thumb of a driver who is holding the steering wheel at the time of a crash. Further, sometimes redness or minor abrasions are seen on the face, which he has witnessed in close to 100 crashes that he has investigated. In their testing, Mr. Haight would also induce abrasions “predominantly on his wrists”, which was the most repeatable. Sgt. Muir stressed, however, that in all of the testing and crashes that he has investigated, he has never seen lacerations caused by an airbag deployment, other than the one case where someone was wearing glasses. Notably, there is no evidence in this case that Mason Amell was wearing glasses at the material place and time of this accident, or at any time for that matter.

215Sgt. Muir was then directed to a study that focused on injuries related to airbags, which seems to suggest that contusions or lacerations can result from airbag deployment. Sgt. Muir pointed out, however, that the footnote related to the entry references generation one airbags and not generation two airbags, which the 2000 Montana van was equipped with. Moreover, Sgt. Muir explained that he had updated his research since he reviewed the particular paper being referenced, and he could not find another, more current reference to facial laceration injuries caused by airbags. On that point he said, “I would have expected to find a newer paper in relation to that, and there isn’t anything there”.

216Sgt. Muir was challenged that he had not performed a search of medical journals to canvass the possibility of there being a body of literature showing injuries related to airbag deployment. He conceded that he had not searched The Lancet and The New England Journal of Medicine, as was suggested to him. However, in re-examination, it was clarified that certain sources that he did review on this issue were indeed referenced in medical journals, specifically: the Nebraska Medical Journal, the Journal of Ophthalmic Nursing Technician, the Journal of Emergency Nursing and the Canadian Medical Association Journal.

217With respect to Sgt. Muir’s review of Mason Amell’s medical records and the more recent assessment of Mason Amell’s scars, Sgt. Muir would not agree that what he saw on Mason Amell were abrasions. The scars appeared to be the result of the skin being cut, not rubbed or burned. However, Sgt. Muir did not see Mason Amell at the time of the crash to determine whether he had both lacerations and abrasions.

218Sgt. Muir was asked about the composition of the seatbelt material in this particular van, which he explained was made from nylon webbing or hybrid webbing. Sgt. Muir confirmed that the material is not fire resistant and that he has “seen them burn through”.

219With respect to moving between the front and back seats, based on his personal experience, the best that Sgt. Muir could say was that it was “awkward, but doable”.

220Sgt. Muir identified that the catalytic converter in this van was positioned under the passengers’ seats, close to the centre line of the vehicle. He agreed that the catalytic converter could potentially be a source of ignition “if other volatile fluids…got back to it”.

221He also agreed that the wiring that runs throughout the vehicle could become exposed and cause a spark. However, in re-examination, Sgt. Muir clarified that the wiring bundle travels along the rocker panel on the inside of the occupant compartment, underneath the carpet. To recall, David McPhail testified that upon their arrival, the fire was in the front of the vehicle. David specifically recalled that the fire was only a few feet above the windshield when he first saw it. Further, Michelle confirmed this as well.

Mason Amell

222Mason Amell was 18 years of age in August of 2009. He had recently graduated from grade 12 at South Grenville High School, but was intending to return that fall to pick up some extra credits and play school sports. Thereafter, he planned on attending Algonquin College in the Police Foundations program. He was also to begin the season with the South Grenville Rangers Jr. “B” hockey team in the fall of 2009.

223Mason Amell, Dylan Heisel and Tyler Curry were close friends. They had known each other from grades 5 or 6 onward. They also played hockey together. Mason Amell could not think of anyone who was as close to him as Dylan Heisel and Tyler Curry.

224Mason Amell was an experienced drinker by the summer of 2009 having started to drink when he was 16 or 17 years of age. By that summer, he would drink at least every other weekend. Further, over the course of that summer, the three young men would get together most weekends. They had attended in the order of 10 to 15 parties together by the time Kaitlyn Utman’s party occurred.

225As a matter of habit, Mason Amell would consume in the range of 12 to 15 beers at any of the parties that he attended that summer. Having consumed that much beers, as he described, “I’d be intoxicated. I wouldn’t be sick or anything along those lines, but it was bound to get me drunk.”

226Mason Amell’s other habit or practice that summer was to have a cab pick him up from a party, or to call his mother for a ride.

227Mason Amell began the morning of August 22^nd at his friend Jeff Mouton’s house, having stayed over the night before. Their plan was to go to Dylan Heisel’s home for a day of games and drinking before heading to the Utman party.

228Mason Amell arrived at Dylan Heisel’s home at around 2:00 p.m. with approximately 10 or 11 beers out of a 15 pack that he had from the day prior. He estimated that he consumed approximately 10 beers over the course of his time at Dylan Heisel’s home before arriving at the Utman residence around 10:00 or 10:30 p.m. He also recalled having an additional six beers purchased for him in Spencerville by a friend, prior to heading to the Utman party.

229Mrs. Heisel drove them to the party that evening. He and Dylan had no plan for a return ride back to the Heisel’s, which he estimated was approximately a 5 to 10 minute drive away. There was a plan, however, for he and Dylan to return to the Heisel’s after the Utman party.

230Tyler Curry was working that evening and would be arriving at the Utman residence separately, after work.

231By the time that Mason Amell arrived at the Utman residence, in his view, he had a “buzz on”. As he explained: “I would’ve been able to walk fine, maybe a little slurred speech, but other than that, I would’ve been in ok shape…”

232Mason Amell estimated that he took six to eight beers with him to the party in a book bag.

233Mason Amell was wearing a black t-shirt, khaki, knee-length shorts, flip flops and a ball cap.

234Mason Amell’s recollection of what he did at the party included going to visit with Kaitlyn’s parents in the house for 10 to 15 minutes, as they had dated previously. Otherwise he spent most of his time in the area where the DJ booth was set up along with a table that was used for the drinking game, “flip cup”. Mason Amell estimated that he played the game perhaps five to six times over the course of the evening.

235Mason Amell believed that it was around 2:00 a.m. when he left the party, although admittedly he was not wearing a watch. However, as he put it, “it felt late and I had enough”. Thus he was tired and the plan was for he and Dylan to return to the Heisel residence.

236It was at about that time that Dylan Heisel approached him to tell him that he had found them a ride home with Tyler Curry. Thus, they made their way to Tyler Curry’s mother’s van.

237When they got into the van, Mason Amell recalled a few people having a conversation outside the van. Jordan Turcotte and Hillary Barton were two of those people. In part, the conversation centred on Jordan Turcotte coming with them, but Dylan Heisel was not keen on that. By the time the conversation was over, Tyler Curry was positioned in the driver’s seat.

238Mason Amell got into the back of the van and sat in the passenger’s side, middle-row captain’s chair, immediately behind the front passenger’s seat where Dylan Heisel was positioned.

239Mason Amell was very familiar with the Curry family van having ridden in it a couple of times every other week over the two years or so that the Curry family had owned it.

240Mason Amell got his licence when he was 16 years old. Tyler Curry, who is only a couple of months younger, was 17 when he got his licence. Thus, there were occasions, perhaps five, when Mason Amell had driven the van for short trips to the store, with Tyler Curry’s mother’s permission. However, once Tyler Curry obtained his licence, over the course of a year by the time of the party, Mason Amell had never seen Tyler Curry let anyone else drive the van, including Mason Amell.

241Mason Amell usually wore his seatbelt and he was particularly focused on seatbelt use at the time of the party, because a friend had just been involved in a bad accident the week prior and ended up going through the windshield because he was not wearing a seatbelt. Thus he remembered putting on his seatbelt in the van and told the other two that they should put theirs on as well. He was not sure, however, whether they followed his admonition or not.

242Mason Amell conceded that the last thing he remembers clearly is the van starting up and pulling away. He then recalls putting his head against the back of the hard plastic clad front passenger’s seat with the mess pocket attached to it.

243Mason Amell also recalls that the van was equipped with a stretchy nylon carrier, stretched between the two front seats, that was always “pretty full of stuff”, as he put it. Mason Amell was approximately 5’11” at the time and about 150-155 lbs. He had never switched places between the front seats and the back in all of the times that he had ridden in the van over the course of approximately two years. When asked for his opinion of whether he could have switched places, he said, “That would be pretty difficult for me…the van was never the cleanest. There was usually a bunch of stuff in the front between those two seats…that middle console carriage or basket was usually pretty full, and me being that tall, it would have made things pretty difficult”.

244Mason Amell confirmed that, in addition to the hard plastic on the back of the passenger seats, there were headrests for the front passenger’s seat.

245Thus, Mason Amell’s last clear recollection saw him with his head forward, resting on the plastic area that extended over the back of the seat, up to where the headrest for the front passenger seat started.

246Mason Amell’s next recollection was described in the following manner, “I remember like a lot of smoke, and it felt like just like a chaotic period of running around and smoke. Like I remember the heat…I remember the heat from the flames”.

247Notably, Mason Amell does not recall feeling the flames themselves because, on all of the evidence, only the three smallest toes on his left foot were burned, due to the fact that he was wearing flip flops. In contrast, the evidence is unequivocal that Tyler Curry suffered substantial, circumferential burns to his right arm, back, right shoulder and chest, as well as to his neck, back of his head and right thigh.

248Mason Amell then recalls “squeezing out through a door of some sort…but I’m, not too sure”. At some point, he recalls being face to face with Tyler Curry. He does not recall being at the Kemptville Hospital or the Ottawa Civic Hospital. He has no recollection of being transported by ambulance. He believes it was his mother who told him that he had been in an accident, perhaps the next morning at the hospital.

249Mason Amell described the injuries that he suffered as a result of the crash. He had lacerations “all over” his face, mostly in the “forehead area”. He had a laceration that extended from his eyebrow to the tip of his nose, which was a “deep cut” that left a scar. It was a three inch scar that went into his hairline. There were other minor cuts on his face. Two of his bottom middle teeth were broken in half.

250He suffered a right shoulder injury that felt like a pinched nerve and the discomfort from it persisted for approximately four to six weeks. He also had restricted range of motion in the right shoulder. His chest was sore and his right hip felt like a “hip pointer”, which he equated to a hockey injury when one hits the boards with their hip, although the pain from this injury lasted longer, in the range of two to three months.

251Further, he described that his right arm was “covered in lacerations and up to my shoulder”. He has approximately six to seven residual scars on his right arm, elbow and shoulder from the cuts that he sustained. There were no injuries to his legs, notwithstanding that he was wearing only shorts. In contrast, Tyler Curry, who was also wearing shorts, suffered a burn to his right thigh and an abrasion to his left knee.

252Again, Mason Amell’s three smallest toes on his left foot suffered burns on the very ends “underneath the like toenails and on the bottom of the foot”.

253Mason Amell was also told that he suffered a concussion. He described feeling “dizzy really easily” and “blurred vision” as well as “getting confused” when he tried to attend the Jr. “B” training camp in early September. He tried to practice with the team “multiple times” but was unable. He was eventually able to return to the team in mid-October. Moreover, Mason Amell found it hard to focus and pay attention in school when he first returned in the fall.

254Mason Amell explained that the plan was for him and Dylan Heisel to return to the Heisel residence immediately after departing the Utman party, which he estimated was approximately a five to ten minute drive away. Tyler Curry, however, was intending to go to an “after party” in Prescott. Dropping them off in Spencerville was on the way between the Utman’s and Prescott, where Tyler Curry also resided.

255During cross-examination, Mason Amell confirmed that he had consumed approximately 16 beers over the course of his time at the Heisel residence and the Utman party that day. That equated to about a beer and a half per hour, in respect of which he considered himself to be drunk, notwithstanding a number of suggestions to the contrary by defence counsel. As indicia of his intoxication, he said that he probably had slurred speech and was louder than usual.

256Mason Amell remembered when he got into the van to leave. However, he did not recall jumping into the van. He certainly did not run and jump into the van, as was suggested to him by defence counsel.

257Mason Amell confirmed that he spread out the five to six times that he participated in the flip cup game over the time that he was at the party. The only qualification that he gave in respect of his intoxication was that he was not “blackout drunk”.

258Mason Amell confirmed that his family had a similar van to the Curry’s, however, theirs had plush fabric on the backs of the seats with a “sewed-in compartment”, as opposed to the hard plastic cladding with nylon mesh. It was suggested to Mason Amell that the Curry van had the same plush fabric type of backing on the van’s front seats. Mason Amell’s response was, “No, it didn’t. Theirs was an all plastic back, with nylon mesh as I described”.

259It was suggested to Mason Amell that a previous answer that he gave regarding his ability to move between the front seats and the back of the van was inconsistent with his evidence at trial. Whereas now he was saying it would have been pretty difficult for him, given the stretchy basket unit in the console area piled with stuff, at an earlier time he said it would be tight and that he would have had to crouch down, but it could be done. Further, Mason Amell was consistent in saying that the van was never the cleanest and that the area was always “piled with stuff”. Mason Amell’s answer to the apparent contradiction was, “Crouching down sounds pretty difficult to me, especially when you’re climbing over something. I used different words, I guess. I’m a little more confident now. I was young at the time.”

260Mason Amell has been consistent in saying that he does not remember much after he put his head down and against the back of the passenger’s seat ahead of him, when the van left the party, apart from the following:

1. “a lot of smoke”;

2. “a chaotic period of running around”;

3. “the heat from the flames”;

4. “squeezing out through something, maybe a door or a window”;

5. “running around the van”, although he cannot say whether it was the front or the back of the van;

6. “touching Tyler Curry”, although he cannot say what side of the arm or what side of the body or where in relation to the van that the two were at the time; and,

7. “seeing Tyler Curry’s face after the accident”.

261Mason Amell conceded that he does not remember other aspects of the accident. He does not recall Tyler Curry being on fire. He does not recall what transpired in the van, if anything, leading up to the crash. He has no memory of the individuals who attended at the scene save for some recollection of speaking with his friend, Jeff Moulton. He has no memory of the hospital attendances.

262Mason Amell does recall, however, advising everyone to buckle up before they left the party, and he specifically recalls saying to the other two, “you remember what happened to Josh, we should put our seatbelts on.”

263Mason Amell believes that he had a “pretty serious” concussion. He recalls specifically being told this by the trainer for the Jr. “B” hockey team, who he described as “ex-military…medical”, to which he added, “I spent a lot of time with him, trying to recover to play hockey”. As it was, Mason Amell missed about two and a half months of hockey.

Dr. John Brisbois

264Dr. John Brisbois was the physician who attended to Mason Amell initially at the Kemptville Hospital. He has carried on an emergency room practice together with a family medicine practice for the past 12 years. He estimated that he would see a motor vehicle accident every 2^nd or 3^rd shift in the Kemptville emergency department.

265Dr. Brisbois admittedly had little recollection of this case save for the feature that Mason Amell was asking for the physician to get into bed with him. For that and other reasons, Mason Amell was referred to the Ottawa Civic Hospital for a CT scan to investigate a head injury.

266In taking a medical history, Dr. Brisbois noted that Mason Amell had consumed 15 beers before midnight. He found Mason Amell to be alert and oriented, however, there was some inappropriate behaviour present. Thus, Dr. Brisbois was concerned about head trauma and could not rule it out, absent a CT scan.

267Dr. Brisbois diagnosed right shoulder pain and right hip pain. He noted a laceration on Mason Amell’s forehead and abrasions on his arms.

268During cross-examination, Dr. Brisbois confirmed that he would have received the information regarding the consumption of 15 beers directly from Mason Amell. Put simply, “If the patient told me 15 beers, I would have put that down”.

269Dr. Brisbois described a laceration as a linear cut in the skin, with the skin being open. Abrasions, however, would be smaller lesions that might be open with some blood oozing from them. That said, he clarified that lacerations could also be small.

Dr. Jeff Bradley

270Dr. Jeff Bradley was a 3^rd year Resident in Emergency Medicine who saw Mason Amell upon his arrival at the Ottawa Civic Hospital. Dr. Bradley has an undergraduate degree in Neuroscience and some experience in the area of Adult Neurology. Moreover, Dr. Bradley is a sporting event physician who is now located in Alberta where he routinely sees athletes who have suffered head trauma in sports such as bobsledding and snowboarding. As part of his present duties, he speaks with medical students about head injuries in patients during clinical shifts.

271Dr. Bradley had an independent recollection of this case. He also had the benefit of having reviewed the chart, including his notes. He noted that Mason Amell could not recall the incident when he was assessed at 7:20 a.m. on August 23^rd. Mason Amell admitted to consuming 15 beers. He did not report any vomiting, however, there was a question as to whether or not Mason Amell had experienced loss of consciousness during the accident. Dr. Bradley also noted “burns to feet, lacerations to forehead and fractured 2 teeth”.

272Dr. Bradley smelled an odour of alcohol on Mason Amell’s breath and noted that he had a GCS of 14, one point lower than the 15 which is normal.

273Dr. Bradley’s final diagnosis was a concussion with no neuro-surgical intervention required. The factors that he took into consideration in coming to his diagnosis were as follows: some blunt force trauma to the head, amnesia, and a question as to whether there was loss of consciousness. All of which, when taken together, caused him to conclude that Mason Amell suffered a concussion.

274Dr. Bradley was presented with a synopsis of evidence given by Mason Amell regarding the challenges that he faced when he attempted to return to playing hockey and attending school, specifically: dizziness, confusion on the ice, and an inability to concentrate in school. Dr. Bradley’s opinion was that these symptoms were consistent with post-concussive syndrome, which only served to verify his initial diagnosis.

275During cross examination, Dr. Bradley confirmed that he still found Mason Amell to be intoxicated when he assessed him.

276Dr. Bradley noted again the laceration that he saw on Mason Amell’s forehead. He added that there were some abrasions present, however, he did not have a strong recollection of abrasions verses lacerations.

277Dr. Bradley clarified that it is quite common for intoxicated patients to record a GCS OF 14.

Evidence – Defence

Luke Casselman

278Luke Casselman was 18 years of age in the summer of 2009. He had attended South Grenville High School with Tyler Curry, Dylan Heisel and Mason Amell. He knew them all. Luke was engaged to be married to Miranda at the time. They had gone to Ottawa that evening for a late dinner and were returning home along the back roads when they spotted what appeared to be a bonfire or brushfire ahead.

279At a distance of about 1 kilometer they were unable to determine what was on fire. When they were about 100 feet away, Luke realized that it was a vehicle on fire. Luke passed the fire by approximately 80 feet and came to a stop. The fire was to his right, on the passenger side of his car.

280Marked and filed as Exhibit 22 is a diagram of the accident scene that Luke drew on March 1, 2010, approximately 6 months later. When compared with the scale drawing prepared by Cst. Unhola as part of the Technical Traffic Accident Report, and the diagram prepared by Miranda on March 1, 2010, Luke’s recollection differs, in my view. Luke confirmed that his diagram accurately shows the configuration of the van at the scene, as he remembered it.

281When he came to a stop approximately 80 feet to the south, Luke pulled his car off on the right hand shoulder of the road, which the evidence indicates was adjacent to a fairly significant ditch. He positioned the car with two tires on the road and two tires on the shoulder, and then put his car in reverse. He then began to back up. He was looking into his centre, rear view mirror as he backed up. At some point during the process of stopping and backing up, he had retrieved his cell phone, most likely from his pants pocket, and had dialled 911, but had not yet hit send, all the while focusing solely on his centre, rear view mirror, while in reverse.

282It was when Luke stopped, still approximately 30 feet south of the burning van, that he saw what he assumed was a person fall out of the driver’s door of the van. To use his words, the person “looked like a sack basically”, and “there was a little bit of flame on them at that point”. Luke hit send on the 911 call and was connected with the dispatcher. He began to relate to the dispatcher what they had happened upon, the details of which are transcribed in Exhibit 24. At some point, Luke exited his car and walked the full length of it to the back, all while speaking with the 911 dispatcher. Luke believes that the person who fell out of the driver’s side door was Mason Amell. In describing Mason Amell, Luke said: “He wasn’t too badly burned, his cloths seemed to be like singed, they had little licks of flame on them when he first got out of the vehicle”. However, when asked to describe Mason Amell in greater detail, with particular attention to his face or head, Luke said: “I didn’t really notice because just as he was getting close to me is when Tyler Curry (or who he later identified as Tyler Curry) had taken our attention, but – so I didn’t notice anything else really right away that physically-wise that out of the normal but it was also a very dark night”. (emphasis added)

283Again, as Mason Amell made his way up towards the road, Luke described seeing who he later identified as Tyler Curry coming around the front of the van, on fire. Tyler Curry was visible once he reached the front left corner of the van, as Luke explained. Luke did not see when or from where Tyler Curry exited the van. Moreover, it was at this point that Luke described seeing “the flames coming above the hood of the vehicle”.

284It was then that Luke and Miranda began to yell out for Tyler Curry to “drop and roll”. Once he was on the ground, the flames were put out and it was only when he began to get up that Luke recognized it was Tyler Curry. Luke described Tyler Curry’s burns as “one whole side of him was burnt…skin was hanging…his clothes, his shirt was pretty burned, it was like half gone…his neck was burnt…his hair was probably singed”.

285Luke was asked whether he was certain that it was in fact the driver’s side that he saw someone fall out of. He answered, “Yes, because the passenger side would be on the far side of the vehicle, there would be no way for me to see it”. That answer is, in my view, premised on Luke’s mental image of the accident scene some 6 months later as set out in the diagram that he prepared on March 1, 2010, Exhibit 22. By comparison, the scale drawing prepared by Cst. Unhola shows the passenger side of the van to be closer to the shoulder and the travelled portion of the road, where Luke testified that he was standing at the rear of his car, 30 feet to the south. Further, the diagram prepared by Miranda on March 1, 2010, accords more closely with Cst. Unhola’s scale drawing. She, too, places the passenger side of the van closer to and more in line with the shoulder and travelled portion of the road, as well as the rear of their car, which accords with her evidence. Put simply, by Luke’s recollection, the passenger side of the van became the “far side of the vehicle” because of the manner in which he rotated the front of the van away from the shoulder or travelled portion of the road, to the west, in his diagram, Exhibit 22.

286Luke contended that if he lost sight of the person who he saw fall out of the driver’s door, it could not have been for more than 2-3 seconds, notwithstanding all that he was engaged in at the time.

287During cross examination, Luke confirmed that he stood about 6’5” and weighed approximately 330 lbs., at the time.

288Luke agreed that he was wrong in telling the 911 dispatcher that the accident scene was east of highway 416, when in fact it was to the west of 416. The audio recording of the 911 call was played in Court and subsequently marked as Exhibit 23. There is no question that the accident scene was a frantic and chaotic situation, which is clearly evident in Luke’s voice as well as by the sounds that can be heard in the background. In the circumstances, it would not be unusual for a witnesses powers of observation and perception to have been affected.

289It is agreed that the call from Luke reporting the collision was received by the Brockville Fire Department at 2:15:45 a.m. Further, it is agreed that a second call was received by the Brockville Fire Department from Donna Thorpe at 2:17:10 a.m. with respect to the same collision, while Luke was still on the phone with the dispatcher.

290Luke conceded that he reported to the dispatcher that two people had “severe burns”. As he explained, “It’s – he was – got out of a vehicle that was on fire so I assumed he would have been burnt”. Notably, neither the clinical notes and records regarding Mason Amell’s injuries nor the evidence given by any of the witnesses shows that he suffered burns, other than to the three small toes of his left foot. However, by Luke’s recollection, there were flames visible on Mason Amell’s upper body, specifically his clothing, which could be seen from a distance of 30 feet, while Luke was looking through his centre, rear view mirror. He added, “I had saw the shirt (Mason Amell’s shirt) slightly on fire and there were flames around them…his clothing was smouldering”.

291Luke described his car as a Saturn SL 2, two door, which he agreed was a small car. He would not concede that he may have lost sight of the person who he saw fall out of the driver’s door while he was in the process of backing up, and while ensuring that he did not back his car into the adjacent ditch. Further, while he was focusing on stopping and backing up, he would have had to retrieve his cell phone from his pants pocket and dial 911. Moreover, he would not concede that he may have lost site of the person for more than 3 seconds while he was getting out of the car, disputing the suggestion that 5 seconds would be a “stretch”. Luke agreed, however, that he may have been wearing his seat belt, which was his “habit to wear most of the time”. Thus he would have had to remove it before getting out of the car. Having already retrieved his cell phone and dialling the 911, he still had to hit the send button sometime during the process of exiting the car. He could not recall which way he turned once he was out of the car, conceding that he may have turned “the other way”, which would have caused him to take his eyes off the accident scene and thus the person he saw fall out the driver’s door. Thereafter, he would have had to travel the length of his vehicle to the back, while at the same time connecting and speaking with the 911 dispatcher, all of which he asserts that he accomplished in no more than three seconds. Finally, compounding the complexity of multitasking, as he was, is the fact that he was exiting a small car while standing 6’5” and weighing, by his estimation, around 330 lbs.

292Luke would only concede that it was possible that he failed to observe another person standing in the immediate vicinity of the driver’s door, when he was focused on the person who he saw fall out of the driver’s door, and while in the processes of backing up and making the observations through his centre, rear view mirror. Luke’s explanation was, “I guess anything is possible but I highly doubt it as the vehicle was on fire and I would have seen the silhouette if there was a person there”. Thus, Luke assumed that he would have seen the person standing by the driver’s door from a distance of 30 feet, while looking in his centre, rear view mirror, because the scene was sufficiently illuminated by the fire. However, when he was asked earlier to describe Mason Amell’s face and head in greater detail, when he was much closer to him, 10-15 feet away, Luke said, “I didn’t notice anything else right away that physically-wise that out of the normal but also it was a very dark night”.

Miranda Casselman

293Miranda Casselman did not know any of the three young men prior to the events of August 23, 2009. She did not attend the same high school.

294She also recalled seeing what she thought was a bonfire along the side of County Road 44. However, it was not until they were “almost on top of it” that they noticed it was a van on fire, meaning “right beside it”.

295She recalled that Luke began to slow down once they got past the fire. She estimated that they were about 30 feet past the fire when Luke said that he thought he “saw something”. She immediately looked into her side, rear view mirror on the passenger side and saw a person standing beside the driver’s side door of the van. The person had their arm resting on the vehicle, which she believed was the person’s left arm. The person was standing there “erect”. The person was facing towards her, looking at her. She estimated that she made the observation in the side, rear view mirror for approximately 15 seconds before exiting the vehicle. She estimated that it took her approximately seven seconds to exit the vehicle as a result of having to turn and remove her seat belt, during which time she would have lost visual contact with the person. Thereafter, she had to negotiate her way along the side of the car, which was positioned on the shoulder of the road, adjacent to a ditch. When she reached the back of the car and looked up, the person was still standing there “staring” at her. She then coaxed the person to come up towards the road where she was standing. The person was later identified to her as Mason Amell.

296Miranda confirmed that she got out of the vehicle “as soon as the vehicle was stopped”. She believes that Luke was still calling 911 at that time. Further, it was before she exited the vehicle that she saw the person standing next to the driver’s door. Miranda explained that she did not have to adjust her position in her seat in order to see out the side, rear view mirror. She was already looking in the side, rear view mirror before Luke stopped the car because Luke said out loud that he thought he had seen something or someone.

297Miranda was asking Mason Amell some questions when she noticed another person, who was later identified to her as Tyler Curry, on the front passenger side of the van. With reference to the diagram that she prepared on March 1, 2010, marked as Exhibit 25, she indicated the area where she saw Tyler Curry emerge from on the passenger side of the vehicle. Recall that by this time, Miranda was standing at the back of Luke’s car, as she described: “More towards the back of the back left…not beside the driver’s door…about 5 feet away or so from the car…I’m fairly close to the vehicle”. Recall also Luke’s earlier evidence that he could not have seen on the passenger’s side of the van, because it was on the other side of the vehicle.

298Miranda confirmed that she did not see Tyler Curry emerge from the van. Rather, she saw him on the passenger’s side of the vehicle, but lost sight of him when he went around the front of the van from the passenger’s side to the driver’s side. Moreover, it took Tyler Curry from thirty seconds to “almost a minute” to get around from the passenger’s side to the driver’s side of the van, at the back.

299It was when Tyler Curry was present at the back of the van on the driver’s side that she began to yell at him to “drop and roll”.

300After Tyler Curry made his way up to the road, Miranda said, “We asked them if – who they were and if their names were Tyler Curry and Mason Amell.” Recall that Miranda was not acquainted with either of the young men at the time. It was at that time that she could smell alcohol on both of them.

301During cross-examination, Miranda denied that she ever saw anyone fall out of or stumble from the van, notwithstanding the statement that she gave to the police within an hour after the accident expressly stated that she did. Further, she denied that she initially saw two people on fire, although that is what her first statement says. She repeated the same observation in a post that she made on Facebook on August 24^th, and that she saw two people badly burned at the accident scene, which she now denies. Rather, she says that she assumed that Mason Amell was burned because his shirt was “smouldering”. She was confronted with both statements in which she seems to be saying that both boys had severe burns, to which she replied, “Yes it would seem that way”.

302Her trial evidence is, however, that she never saw anyone get out of the driver’s side of the vehicle, specifically the driver’s door. She never saw anyone get out of the passenger’s side of the vehicle, although she could see the passenger’s side. She could not, however, see around the front of the van.

303Miranda agreed with the suggestion that she and Luke were highly excited and even panic stricken when they realized that there were people who were seriously injured. Again, that is evident from the audio recording of the 911 call marked as Exhibit 23. She further agreed with the suggestion that during traumatic events such as these that people may just simply get things wrong, even though they are trying their best.

304Miranda also agreed that, notwithstanding her initial observations and statements made contemporaneous with the events claiming that two people suffered severe burns, Mason Amell did not suffer burns.

305Miranda confirmed that she had no recollection of ever yelling at Mason Amell to “drop and roll”.

306In re-examination, Miranda clarified that while Luke was calling 911, she was running to the back of their vehicle to see if the person who was later identified to her as Mason Amell was okay.

Admissions, Findings of Fact and Analysis

307I remind myself that Tyler Curry is presumed to be innocent of the crimes charged and that he does not have to prove anything in this case. From start to finish, that obligation never shifts. It is Crown counsel who must prove the guilt of Tyler Curry beyond a reasonable doubt, not Tyler Curry who must prove his innocence. Further, I remind myself that reasonable doubt is not a far-fetched or frivolous doubt. It is not a doubt based on sympathy or prejudice. It is doubt based on reason and common sense. It is a doubt that logically arises from the evidence, or the lack of evidence. To that end, it is not enough for me to believe that Tyler Curry is probably or likely guilty. In those circumstances, I would need to find Tyler Curry not guilty, because Crown counsel would have failed to satisfy me of Tyler Curry’s guilt beyond a reasonable doubt. Proof of probable or likely guilt is not proof beyond a reasonable doubt. However, it is nearly impossible to prove anything with absolute certainty. Crown counsel is not required to do so. Absolute certainty is a standard of proof that is impossibly high.

308The Defence contends that the evidence of certain witnesses, particularly Luke Casselman and Miranda Casselman, gives rise to a reasonable doubt as to the guilt of Tyler Curry. The Defence asserts that the evidence of Luke and Miranda Casselman should be accepted and any weaknesses in either’s testimony are not significant to the central issue in this prosecution, was Tyler Curry the driver of the van at the material place and time of the accident?

Admissions

309It is admitted that the alleged offences, as set out in the indictment herein, took place on the 23^rd of August, 2009, on or near County Road 44, in the United Counties of Leeds and Grenville, in the East Region of Ontario.

310It is admitted that, in the early morning hours of the 23^rd of August, 2009, that a Pontiac Montana van, occupied by Dylan Heisel, Tyler Curry and Mason Amell, left the travelled portion of County Road 44, in the United Counties of Leeds and Grenville and collided with a tree. The collision caused the death of Dylan Heisel and resulted in injuries to Tyler Curry and Mason Amell.

311It is admitted that at the time of the said collision that the deceased, Dylan Heisel, occupied the right front passenger seat of the Pontiac Montana van involved in the collision. At the time of the collision, Dylan Heisel’s ability to operate a motor vehicle would have been impaired by alcohol.

312It is admitted that Dylan Heisel died as a result of injuries that he received as a result of the Pontiac Montana van leaving the travelled portion of the County Road 44 and colliding with a tree and not as a result of the subsequent fire to the van that resulted from the collision.

313It is admitted that at the time the Pontiac Montana van left the travelled portion of County Road 44, approximately two seconds prior to the collision with the tree, the van was travelling at a rate of between 101 m.p.h. (162 km./h.) and 104 m.p.h. (167 km./h.).

314It is admitted that at a short time prior to the collision, the van had left the driveway of the Utman residence, located at 2608 Buckwheat Rd. At the time that the van left the Utman residence, there were three occupants in the van. At that time, Tyler Curry was the operator of the van and occupied the driver’s seat of the vehicle. Dylan Heisel occupied the right front passenger seat and Mason Amell occupied the middle row of seats of the van.

315It is admitted that at the time that the Pontiac Montana van left the Utman residence, that although the sky conditions were mainly clear and although visibility was good, the moon was below the horizon, providing no illumination from that source.

316It is admitted that the various times and distances recorded by Det. Cst. Jeff Nussey during the course of his investigation as between the Utman residence located at 2608 Buckwheat Rd. in Edwardsburgh Township and the scene of the collision on County Rd. 44 are accurate.

317More particularly, it is admitted that on the 12^th of February, 2010, at 1:37 p.m., Detective Constable Nussey attended at the Utman residence at 2608 Buckwheat Road, Edwardsburgh. Detective Constable Nussey observed a house in a rural area and the laneway to the house to be very long and lined with mature trees. Detective Constable Nussey set the trip on the odometer of his vehicle to 0.0 km. Buckwheat Road is located North on County Road 44 in relation to the collision scene. Detective Constable Nussey drove to the collision scene. Buckwheat Road is a gravel road. Detective Constable Nussey drove 55 km/h on that road. Once on the paved County Road 44, Detective Constable Nussey drove 85-90 km/h. Detective Constable Nussey arrived at the point of impact, the large tree, on County Road 44. The trip meter on the odometer read 4.8 km. The time it took Detective Constable Nussey to drive to the collision scene from the end of the Utman residence laneway was four minutes and six seconds. The average speed was 70.24 km/h.

318It is also admitted that on the 26^th of February, 2010, Detective Constable Nussey used Garmin GPS mapping software to obtain the following information based on the two GPS locations noted above:

(a) The driving distance from the Utman residence to the scene of the collision was 4.8 km.

(b) The software estimated the driving time between the two locations to be four minutes and 45 seconds.

319It is admitted that, Donna Thorpe, who resides approximately 100 metres from the scene of the collision, was awakened by the sound of the collision, she went to the front door and saw flames. She then telephoned the Brockville Fire Department to report the collision. This call was received by the Brockville Fire Department at 02:17:10 a.m. on the 23^rd of August, 2009. Donna Thorpe believes that she made the call within one or two minutes after hearing the sound of the collision. Donna Thorpe told the police investigator that when she saw the flames, they were “really high up into the tree”.

320It is admitted that a telephone call from Luke Casselman reporting the collision to the Brockville Fire Department was received at 02:15:45 a.m. on the 23^rd of August, 2009.

321It is admitted that a sample of blood was drawn from Tyler Curry for medical purposes at the Ottawa Hospital Civic campus at 4:09 a.m. on August 23^rd, 2009 and that the same sample of blood was subsequently analysed as to blood alcohol concentration in the hospital laboratory on the same date. Hospital analysis of the serum/plasma portion of the blood sample revealed an alcohol concentration of 44 millimoles of alcohol in one litre (mmol/L) of serum/plasma. Thus, it is admitted at 2:15 a.m. Tyler Curry’s projected blood alcohol concentration was 169 to 219 milligrams of alcohol in 100 millilitres of blood.

322The affidavits of Betty Chow, forensic toxicologist, dated November 25, 2009 and February 17, 2010, and the attached appendices thereto containing her reports of the same dates and her curriculum vitae are admitted for the proof of the truth of their contents.

Findings of Fact and Analysis

323I find as a fact that the accident unfolded in the manner testified to by Sgt. Muir. As the van left the roadway and headed across the grassy ditch, it began to rotate slightly counter-clockwise. Thereafter, the right front passenger’s corner of the van struck the tree, crushing and shortening it with enough force that the metal bent and the driver’s side was elongated. Moreover, when the right front passenger’s corner of the van struck the tree, the driver moved inboard, or to the right. For a passenger sitting in the second row captain’s chair on the passenger’s side, the same would hold true; they would move to the right or to the outside edge, with the possibility of that person being thrown up against the sliding door on the passenger’s side.

324I find as a fact that upon hitting the tree, the van began to rotate in the opposite direction, or clockwise. With the driver’s side elongated, the driver’s door came unlatched and was ripped off with the onset of rotational acceleration going clockwise.

325I find as a fact that the engine was running hot at 4600 rpm’s, or slightly more than 100 mph on what was a warm summer’s night. When the right front passenger’s corner of the van struck the tree, the brunt of the force was sustained substantially at or near the right front headlight, behind which sat the battery. Further, the van was equipped with a transverse mounted engine with the exhaust manifold being located on the right passenger’s side of the engine compartment. Thus, one of the hottest engine components, the exhaust pipe just back of the exhaust manifold, was located in the same general area that sustained the substantial brunt of the force. Moreover, in the same area was located various flammable liquids and/or vapours emitting from same, specifically, power steering fluid, windshield washer fluid, transmission fluid, engine oil and engine coolant. Thus, I find as a fact that the origin of the fire was in the engine compartment, and that the cause of the fire resulted either as a result of sparks from the compromised battery and heat from the engine, together or in combination, which ignited the flammable substances present, or their vapours.

326I find as a fact that the front of the van erupted in flames immediately upon impact with the tree or shortly thereafter, which occurred at or about 2:14 to 2:15 a.m. To recall, Donna Thorpe, who lived 100 meters from the scene, was awakened by the collision and when she looked out her front door, she could already see flames “really high up into the tree”. She estimated that it took her one to two minutes to reach the Brockville Fire Department by telephone. Her call was received at 2:17:10 a.m. Further, we know that Luke Casselman had previously reached the Brockville Fire Department by telephone at 02:15:45 a.m. to report the accident.

327I reject the Defence assertion that the fire may have started in some location other than in the engine compartment. David McPhail was unequivocal in giving his evidence that when they arrived on the scene, the front end of the van was on fire. He described that the flames were only a few feet above the windshield when they pulled up. He also testified that the fire was moving from the front of the van to the back. Michelle Coleman testified that when they arrived on the scene that the front of the van was on fire from the hood back to the windshield. She could not see flames at any point other than at the front of the van. Thus, I find as a fact that the passengers in the front seats, specifically those who occupied the driver’s seat and the front passenger’s seat, would have been exposed to the fire that originated in the engine compartment before any passenger in the middle or rear seats of the van would have been exposed.

328I find as a fact that the fire was well underway by the time that Luke and Miranda Casselman arrived on the scene. Luke testified that he saw the fire from “probably close to a kilometer” away and that it took them “30 to 40 seconds to get there” travelling at the posted speed limit of 80 kph. Miranda testified that it looked like a “bonfire” when she first saw it, which I took to mean quite significant or large. Thus, I find as a fact that the front end of the van was engulfed in flames prior to Luke seeing it a distance of one kilometer, or 30 to 40 seconds away. In my view, the front end of the van was engulfed in flames contemporaneous with the crash, or immediately thereafter, which I find as a fact could have been at least one minute prior to Luke and Miranda Casselman arriving on the scene.

329I find as a fact that, although Luke Casselman saw something or someone before Miranda did, Miranda looked immediately into her side, rear view mirror, before the car stopped, and saw a person standing “erect” beside the driver’s side door, or where the driver’s door would have been. The person was facing her and the person appeared to have his left arm resting on the van. Miranda maintained visual contact with this person for approximately 15 seconds before she exited the car, while Luke was speaking with the 911 dispatcher by telephone. Further, while Miranda admitted that she lost visual contact with this person for approximately seven seconds while she was in the process of exiting the vehicle, which I accept as being reasonable in comparison with Luke’s estimation of his two to three second exit, when Miranda looked up, the person was still standing by the driver’s side door, and that person was later identified to her as Mason Amell. Further, I accept and find as a fact that Miranda was running to the back of their vehicle to see if the person who was later identified to her as Mason Amell was okay while Luke was still speaking with the 911 dispatcher.

330I find as a fact that Miranda did not see Mason Amell emerge from the driver’s side of the van. I find as a fact that Miranda took notice of Tyler Curry on the passenger’s side of the van because he was on fire. I find as a fact that Mason Amell was never on fire, and thus was less likely to stand out to either Miranda or Luke.

331I find as a fact that Miranda estimated that it took Tyler Curry from 30 seconds to one minute to go around the front of the van from the passenger’s side to the back of the driver’s side. I find as a fact that Miranda lost sight of Tyler Curry when he was at the front of the van. Thus, I infer that, given that Mason Amell was not on fire, it was unlikely that Miranda would have noticed him moving from the passenger’s side of the van around the front of the van to a location near the driver’s door, where she first saw him, which is consistent with Mason Amell’s evidence. I find as a fact that Mason Amell had either completed the movement prior to Luke and Miranda arriving on the scene, or he was completing the movement as they were arriving on the scene and he was hidden from Miranda’s view at the front of the van, or he was simply less noticeable in the chaotic and frantic scene that presented itself, because he was not on fire. I further find as a fact that Miranda never saw Tyler Curry emerge from the passenger’s side of the van.

332I prefer the evidence of Miranda over that of Luke as to what she saw after Luke exclaimed that he saw someone or something fall out of the driver’s door, when in fact Miranda saw Mason Amell standing “erect” beside the driver’s door.

333I find as a fact that Luke’s evidence is unreliable, for a number of reasons. It is clear, and indeed understandable, that Luke was in a highly agitated and frantic state upon their arrival at the scene. It is evident in his voice as recorded on the 911 call. It is evident in his misdirection to the 911 operator that the accident was east of highway 416. Fortunately, that error was remedied by Donna Thorpe. Moreover, Luke’s powers of observation were, in my view, overcome by his agitated and frantic state. He testified that he could not see the passenger’s side of the van because it was on the far side of the vehicle (the van). As Luke said, “There was no way for me to see it”, the passenger’s side. However, Luke and Miranda were both standing to the rear of their vehicle. Miranda could see the passenger’s side of the van. She saw Tyler Curry on the passenger’s side. The diagram that she prepared, which was marked as Exhibit 25, shows why, the passenger’s side of the van was actually in closer proximity to the shoulder and the travelled portion of the road. Miranda’s diagram, although prepared six months later, accords with the scale drawing that was completed by Cst. Unhola. In my view, Luke rotated the van in his diagram of March 1, 2010, marked as Exhibit #22, more to the west, in order to fit with the narrative that he had developed, which included the unfounded belief that the passenger side of the van was not visible to him from where he and Miranda were standing at the rear of their vehicle. Further, Luke’s report to the 911 dispatcher that there were two people with “severe burns” was clearly wrong. His assumption that because Mason Amell got out of a burning vehicle that he would be burned was also clearly wrong. In my view, there is no evidence to show that Mason Amell was on fire, that there were flames on his upper body, particularly flames on his shirt. The only evidence of a burn is to the three smaller toes on the outside of his left foot. Moreover, at one point, when he was asked to describe Mason Amell’s face and head, Luke said that he could not, from a distance of 10-15 feet, because it was a “dark night”. On another occasion when he was asked why he did not see Mason Amell standing beside the driver’s door, as Miranda had, he answered that he highly doubted that anyone was there to be seen, because the area was essentially illuminated by the fire and he would have seen the silhouette, if there was a person there. Finally, the estimation that it took two to three seconds for Luke to exit from the car is, to put it simply, incredible. While not meaning in any way to be critical of this witness’s size, the facts are that he stood 6’5” tall, weighed approximately 330 lbs and he was getting out of a small Saturn car. Admittedly it was his habit to wear a seat belt. He was in the process of connecting and speaking with the 911 dispatcher. In all of these circumstances, he testified that it took him no more than three seconds to exit the vehicle. He would not agree with the suggestion that it could have taken him as much as five seconds. He called that a “stretch”. In my view, the reason why this witness would want to reduce the time that it took him to exit the vehicle was because it was during this period that he admittedly lost visual contact with the person who he saw fall out of the driver’s door. It is in this respect, in my view, that the witness crossed the line from being a fair and impartial witness to becoming an advocate for the defence. Put simply, the witness was so adamant about maintaining the two to three second lapse in visual contact that he would not concede what, in my view, would have been entirely reasonable. In contrast, Miranda freely admitted that she lost visual contact for approximately seven seconds while she exited the vehicle, during which she was not dealing with the distractions that Luke was faced with. For all of these reasons, I find that the weaknesses in Luke’s evidence are significant on the central issue in this prosecution such that his evidence is unreliable.

334In all of the circumstances, I find as a fact that the person who Luke saw fall out of the driver’s door was Tyler Curry, not Mason Amell. I find as a fact that contemporaneous with the events that Luke was viewing through his centre, rear view mirror, Miranda saw Mason Amell standing beside the driver’s door “erect”. Mason Amell was there to be seen, however, Luke’s attention was not drawn to Mason Amell because Mason Amell was not on fire and Tyler Curry was. Further, Luke’s attention was fixed on Tyler Curry when he saw him fall out of the driver’s door because Luke was viewing the situation through the centre, rear view mirror. In contrast, Miranda’s field of view was different than Luke’s in that she was looking into the passenger side, rear view mirror. Her evidence was unequivocal that she immediately saw the person who was later identified to her as Mason Amell, when Luke called out that he thought he saw something or someone. She maintained her view of Mason Amell standing next to the driver’s door for approximately 15 seconds before she exited the car. She admittedly lost sight of Mason Amell for approximately seven seconds while she was exiting the car, but when she looked up, Mason Amell was still standing there, staring at her.

335I find as a fact that Miranda did not initially take notice of Tyler Curry because her attention was fixed on Mason Amell. Thereafter, Miranda did not see Tyler Curry when he moved from where Luke initially saw him on the ground, to the passenger’s side of the van during the seven second gap as she explained it. Rather, it was not until Miranda saw Tyler Curry on the passenger’s side of the van that she took any notice of him.

336I find as a fact that after Luke initially saw Tyler Curry fall out of the driver’s door, Luke was distracted, for all of the reasons set out previously, specifically: reversing the car while being partially on the shoulder of the road and ensuring that he did not go into the ditch, retrieving his cell phone, placing the 911 call, connecting with the 911 dispatcher and reporting the accident, and exiting the car. Miranda had no such distractions to speak of when compared to Luke, and she reasonably estimated that she lost visual contact of Mason Amell for seven seconds.

337I find as a fact that Luke lost visual contact of the person who he saw fall out of the driver’s door for at least seven seconds, if not longer, given the distractions that he was challenged with. Further, it was during the period of distractions and loss of visual contact when Luke also lost sight of the person on the ground, that person being Tyler Curry. In that period of time, I find as a fact that Tyler Curry moved from the ground on the driver’s side to the passenger’s side of the vehicle. I infer that Tyler Curry did so to check on Dylan Heisel, perhaps to see if there was any way that he could free Dylan Heisel from the passenger’s side. I find as a fact that when Luke eventually regained his visual contact of the scene, he saw Mason Amell standing by the driver’s door and he incorrectly assumed that Mason Amell was the person who he saw on the ground moments earlier, just as he incorrectly assumed that Mason Amell was burned as a result of exiting from a burning vehicle.

338I reject that the noticeable difference in the relative heights of Tyler Curry and Mason Amell played any meaningful part in telling one from the other at the point in time when Tyler Curry was on the ground and Mason Amell was standing near the driver’s door. Firstly, neither Luke nor Miranda saw the two young men standing together on the driver’s side, so as to be able to compare their relative heights. Put simply, Luke and Miranda were viewing different scenes due to the differing nature of the respective rear view mirrors that they were looking into. Thus, when Tyler Curry was on the ground, his height relative to Mason Amell’s was irrelevant, in my view, for purposes of distinguishing between the two. Secondly, from a distance of approximately 30 feet, Luke could not identify either Tyler Curry or Mason Amell. It was not until both Mason Amell and Tyler Curry were within 10 feet that Luke was able to identify them, and that is not entirely clear on the evidence of Miranda, who testified that they asked the young men who they were in order to verify their respective names.

339I accept and find as a fact that Mason Amell got into the van and positioned himself in the middle row captain’s chair on the right hand passenger’s side directly behind Dylan Heisel. I find as a fact that Mason Amell put on his seat belt and that he reminded the other two that they should do the same because their friend had been ejected through a windshield the week prior. I accept that Mason Amell adverted to the earlier accident and that it was a good reminder as to why they should all buckle up.

340I accept that Mason Amell remembers the van starting up and pulling away. He recalls putting his forehead against the hard plastic clad front passenger’s seat ahead of him. Further, he admittedly has limited clarity from that point forward, however he does recall:

1. “a lot of smoke”;

2. “a chaotic period of running around”;

3. “the heat from the flames”;

4. “squeezing out through something, maybe a door or a window”;

5. “running around the van”, although he cannot say whether it was the front or the back of the van;

6. “touching Tyler Curry”, although he cannot say what side of the arm or what side of the body or where in relation to the van that the two were at the time; and,

7. “seeing Tyler Curry’s face after the accident”.

341I find as a fact that Mason Amell was still seated in the captain’s chair on the passenger’s side of the van at the material place and time of the accident, for the following reasons. Mason Amell’s facial and head injuries are consistent with him having his head on or close to the hard plastic clad of the seat back ahead of him. Put another way, I find that his injuries are inconsistent with him having the protection of an airbag, particularly a second generation airbag as described by Sgt. Muir. As Sgt. Muir testified and I accept, broken teeth are inconsistent with the protection afforded by second generation airbags. Mason Amell had two teeth that were essentially snapped in half. Facial lacerations are also inconsistent with the protection afforded by second generation airbags. The direct evidence from Mason Amell, his mother, the treating physicians and as disclosed in his clinical notes and records, support the finding that he had significant lacerations to his forehead and face resulting in residual scaring. While I accept that airbags can cause abrasive type redness and abrasions to the face, Mason Amell’s injuries were, in my view, much more serious. I find as a fact that Mason Amell suffered a concussion and was manifesting the sequela of post concussive syndrome in the weeks and months after this accident, certainly until he returned to regular play with his Jr. “B” hockey team sometime in October of 2009. My finding is based on, inter alia, the opinion of Dr. Bradley, the other treating physicians and the clinical notes and records. I find as a fact that the presence of a concussion and lingering sequela are inconsistent with the protection afforded by second generation airbags. I find as a fact that Mason Amell’s right shoulder injury and right pelvis injury are consistent with him being belted in a right side seat, as opposed to a left side seat. As Sgt. Muir testified, the right shoulder pain is consistent with the force created by the right side shoulder belt. The right pelvic injury is also consistent with being belted on the right side of the vehicle. I find as a fact that the chest pain complained of by Mason Amell was also consistent with him wearing his shoulder belt. I find as a fact that, given that Mason Amell did not have the benefit of a pre-tensioner on his shoulder belt in the second row seat that he was occupying, there was greater propensity for slack in the belt and less protection afforded him from being thrown into the hard plastic clad seat ahead, or other hard interior surfaces. I find as a fact that Mason Amell’s right arm injuries, in particular the lacerations, are consistent with him being forced to the right, or the outside of the vehicle, when the van struck the tree. As Sgt. Muir described, the safety glass, which included the side windows, is designed to shatter into little cubes that are admittedly very sharp. I find as a fact that it was either during the initial crash or in the process of Mason Amell squeezing out of the van on the passenger side, either through a window or the damaged, sliding door, that he suffered the significant lacerations to his right arm. In my view, Mason Amell would not have suffered these injuries by exiting through the open portal of the driver’s door. Again, these injuries are, in my view, inconsistent with the protection afforded by second generation airbags as testified to by Sgt. Muir, which I accept. I find as a fact that upon exiting from the passenger side of the van, Mason Amell ran around the front of the van to check on Tyler Curry, who he knew was in the driver’s seat. Further, Mason Amell was standing at the driver’s door “erect” with his arm outstretched, reaching for Tyler Curry, at or about the time that Miranda Casselman saw him standing there, with what she believed to be his left arm resting on the van.

342In accordance with my earlier finding that the driver and the front passenger were initially more exposed to the fire that originated in the engine compartment than anyone occupying the second row of seats, I find as a fact that Tyler Curry’s injuries, specifically his burns, are consistent with him occupying the driver’s seat at the material place and time of the crash. Dylan Heisel, who was positioned in the right front passenger’s seat, was essentially consumed by the fire. Tyler Curry was substantially burned on the right side of his body, which was the side of his body that would have had the greatest exposure to the initial stage of the fire, while being positioned to the left of Dylan Heisel, in the driver’s seat. More particularly, Tyler Curry suffered circumferential burns to his right arm. He suffered burns to his right shoulder, chest and the top of his right thigh. He suffered burns to his throat. He suffered burns to his back and the back of his head. Put simply, I find as a fact that Tyler Curry was immediately, or very soon after the crash, essentially sitting on the edge of the fire that was raging to the right of him in the area where Dylan Heisel was positioned and trapped by the significant crushing to the right front corner of the van. I infer that Tyler Curry was, in all probability, wearing his seat belt and that in any event he had the protection of a second generation airbag. The seat belt material, as testified to by Sgt. Muir, was not fire resistant. Thus, the seat belt material burned through, which allowed Tyler Curry to escape through the open portal of the driver’s side door that was torn from its hinges as earlier described, but not before he suffered the burns that he did.

343I find as a fact that the abrasion Tyler Curry suffered to his left knee is consistent with him “submarining” during the crash and striking his left knee on the knee bolster. And although I do not find it necessary to place a great deal of weight on the evidence of Sgt. Muir that right ankle, malleolar type fractures are primarily, but not exclusively, injuries suffered by front passenger’s in automobile accidents, Tyler Curry’s right ankle, malleolar fracture serves to corroborate my findings that he was in fact the driver of the van at the material place and time of the accident. In making this finding, I consider and accept the evidence that in the two seconds preceding the crash, the driver made a significant brake application. I infer that the brake application would have been made by the driver using his right foot. Thus, I infer that the driver would still have had his right foot on the brake pedal at the time of the impact with the tree. That, in combination with the geometry of the floor pan or toe pan in the driver’s area would, in my view, based on the opinion of Sgt. Muir, cause a driver to suffer a right ankle, malleolar type fracture. Notably, Tyler Curry suffered such an injury while Mason Amell did not. In my view, Mason Amell would not have been exposed to the same forces on his feet and ankles while seated in the second row due, in part, to the geometry of the floor pan in that area.

344I reject the Defence contention that Tyler Curry and Mason Amell switched places during the 4.8 km or four minutes and 45 seconds that it took the van to travel from the Utman residence to the scene of the accident, for the following reasons. I accept Mason Amell’s evidence that he was intoxicated and tired when he seated himself in the captain’s chair on the right side of the van behind Dylan Heisel. He had consumed at least 15 beers over the time that he drank prior to the party and while at the party. He played at least five rounds of the drinking game flip cup wherein he was chugging quarter cups of beer. There is evidence of witnesses who said that he was slurring his words. He testified that he was slurring his words. There is evidence from witnesses who could still smell the odour of alcohol on him at the accident scene and while he was being cared for in hospital. He made the utterance at the accident scene, to the fire fighter, that they, meaning him and Tyler Curry, were “fucking drunk”. Later in the morning when Dr. Bradley assessed Mason Amell, there remained the sense that he was still intoxicated, which could have accounted for the lower GCS score of 14. I do not find the evidence that he jumped into the van to be determinative that he was sober, or at least in a more sober state than Tyler Curry. In all of those circumstances, I reject the contention that Tyler Curry would have relinquished care and control of the van to Mason Amell. Further, I find as a fact that Tyler Curry meant to drop Mason Amell and Dylan Heisel off at the Heisel residence in Spencerville, which was approximately a five to ten minute drive from the Utman residence, and on the way to Prescott where Tyler Curry both lived and was intending to attend an after party event. In those circumstances, query what sense it would have made, or good it would have done, for Mason Amell to drive part way, or at all, between the Utman residence and the Heisel residence, when there was no plan for Tyler Curry to remain at the Heisel residence, but rather to continue on to Prescott, whether to the after party or home. I accept the evidence of those witnesses who testified that Tyler Curry refused to give up his keys to the van when asked, and that he misled them when he assured them that he would not drive away from the party. Indeed, on all of the evidence, that is exactly what he did, drove away from the party. I accept the evidence from at least one witness who said that it sounded as though the van was being driven aggressively when it was going out of the laneway of the Utman residence, when we know that Tyler Curry was behind the wheel. I accept the evidence that the van was seen swerving on the road as it pulled away from the end of the Utman driveway heading towards Spencerville, with Tyler Curry behind the wheel. This aggressive driving by Tyler Curry was, in my view, consistent with the van being operated at speeds of over 100 mph or 160 kph just prior to the collision when it left the roadway, some 4.8 kilometers away. I infer that it would have been difficult for the two young men to have switched places by stepping over the console carriage or basket, as Mason Amell described, that was usually “full of stuff”. I accept Mason Amell’s evidence that he had never done that or even seen it done in all of the times that he had ridden in the Curry van over a period of approximately two years prior. Further, I accept Mason Amell’s evidence that once Tyler Curry obtained his licence, Mason Amell never drove the van again, nor did Mason Amell ever see Tyler Curry relinquish care and control of the van to another driver while Tyler Curry was operating the van.

345I find as a fact that Tyler Curry never pursued any alternative means of transportation away from the party or overnight accommodation at the Utman’s. Thus, I infer that his only plan was to drive the van back to Prescott when he departed the Utman residence.

346I find as a fact that Tyler Curry never explored the possibility of an alternative driver, on all of the evidence before me.

347Finally, there is no evidence before me that the van ever stopped during the 4.8 km between the Utman residence and the accident scene when Tyler Curry was driving.

Conclusions

348Having considered all of the evidence, and based on that evidence which I accept and that evidence which I reject, for the reasons set out above, and having considered the submissions of counsel and the relative positions of the parties, and bearing in mind that Tyler Curry need not prove anything, but that the obligation remains on Crown counsel to prove the guilt of Tyler Curry beyond a reasonable doubt from the start to the finish of this trial, I am left with no doubt that Tyler Curry was the driver of the vehicle at the material place and time of the accident giving rise to the death of Dylan Heisel and the injuries suffered by Mason Amell. Further, it is admitted that Tyler Curry was impaired by alcohol at the material place and time, or more particularly that his blood alcohol was over the legal limit. Notably, there was never any suggestion during the trial that the driving of the van at speeds of over 100 mph or 160 kph, leaving the road and resulting in an accident, was anything less than a marked departure from the norm or reasonable standard, or dangerous driving per se. Nonetheless, I find as a fact that, having considered all of the circumstances such as the nature, condition and use of the place, namely County Road 44 as disclosed by the evidence, dangerous driving is made out. Thus, there will be convictions registered with respect to Counts 1-6 of the Indictment. Having so found I need not consider the alternative aspect of Party Liability.

The Honourable Mr. Justice B. W. Abrams

Released: August 10, 2016

CITATION: R. v. Curry, 2016 ONSC 5217

COURT FILE NO.: CR 10-1450

DATE: August 10, 2016

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Her Majesty the Queen

– and –

Tyler Curry

accused