Court File and Parties
COURT FILE NO.: CR-15-92 DATE: September 22, 2016
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN Caitlyn Downing for Her Majesty the Queen
- and -
MARTIAL LAVERDURE Mark Huckabone and Jessica Fuller, for the Accused Accused
HEARD: September 12, 13, 14, 15, 16, 19, 20, 2016
REASONS FOR DECISION
James, J.
The Facts
[ 1 ] On January 11, 2015 Ernest Hall was struck and fatally injured by a vehicle operated by Martial Laverdure. Mr. Laverdure was charged with the offence of dangerous driving causing death. This is a serious offence and upon conviction, the Criminal Code provides that the maximum penalty is fourteen years imprisonment. [ 2 ] The accident occurred following a Lumber Kings hockey game at the Pembroke Memorial Centre, commonly referred to as the “PMC”. It was a little after 9 p.m. on a Sunday night. The temperature was well below zero. The road was bare but a little wet, especially along the edges. The game had just ended and many spectators were in the process of returning to their vehicles to drive home. Mr. Hall was one of those spectators. Mr. Hall was 57 years old. He had a distinguished career as a member of the Canadian Forces. [ 3 ] For the reasons that follow, I have determined that Mr. Laverdure’s guilt has been proven beyond a reasonable doubt.
The Civilian Witnesses
Evidence of Pierre Labre
[ 4 ] Several people who were in the vicinity of the accident testified at the trial.The first witness was Pierre Labre. Mr. Labre is a season ticket holder for Pembroke Lumber Kings hockey games. He usually attends all home games with his friend, Allan Roettger, who was also a witness at the trial. Mr. Labre is a Class A vehicle mechanic and the proprietor of an automotive repair shop. He is 46 years old. He was at the hockey game held at the PMC on the evening of January 11, 2015. The game started at 7 p.m. He arrived at about 6:30 p.m. and parked in what he called the back parking lot which is a parking area across the street from the PMC on the north side of Lake Street. He stayed until the end of the game and the 3 star selection. The game was tied at the end of regular play and there was an overtime period that lasted about 4 or 5 minutes. He said that there was a relatively large crowd of fans in attendance at the game that evening. He did not leave the building immediately after the game. When he exited the building into the PMC parking lot, there were many spectators who were in the parking lot either walking to the street or to their vehicles. [ 5 ] In addition some of the people who were at the game had already entered and started their vehicle and they were queuing up to leave the PMC parking lot by exiting onto Lake Street. Most of these vehicles were turning right onto Lake Street and travelling east. Mr. Labre and Mr. Roettger walked from the doors exiting the building northbound to Lake Street in order to cross Lake Street and enter the north parking lot across from the PMC. He said he was in a loose group of about 20 people in all who were gathering at the curb in order to cross Lake Street. There was a truck travelling along Lake Street from the west that stopped in order to allow the pedestrians to cross. Mr. Labre said he looked to the right and the traffic was clear. He could see the controlled intersection east of his location at the intersection of Lake and Frank Nighbor Streets. Mr. Laverdure’s vehicle was located at that intersection waiting for the light to turn green so he could continue travelling westbound on Lake Street approaching the PMC. Mr. Labre said that when the truck in the nearest lane stopped to allow the pedestrians to cross, he looked to the right. The westbound lane of Lake Street was clear and he started to cross with the other pedestrians. As he approached the center line of Lake Street he heard a vehicle accelerating. He said it sounded like someone had “hammered it down” and he heard the engine revving. He looked to the right and saw the subject vehicle, a blue 1997 Toyota RAV4, approaching from the right. He said that as the vehicle approached it was “accelerating hard” but by the time the vehicle was alongside of Mr. Labre he estimated that it was travelling at a constant speed. As the vehicle approached he stepped backwards from the center line of the street. After the vehicle passed his location he heard a thump, saw the brake lights come on, observed the vehicle go into a skid then heard another sound of the vehicle contacting something. [ 6 ] In cross-examination he said that he first saw the vehicle at the intersection by Algonquin College which would be Lake Street and Frank Nighbor. The vehicle was stopped for the red light. He did not see the light turn green but said he heard the vehicle accelerate as it approached him.
Evidence of Donna Cotnam
[ 7 ] Ms. Cotnam was at the hockey game that night with her husband. She is 58 years old. She works at Miramichi Lodge as a fundraiser and is a fitness instructor as well. [ 8 ] When they attend Lumber Kings games they usually park in the parking lot for the Total Battery store which is east of the PMC on Lake Street. That night they walked across the PMC parking lot to the northeast corner of the parking lot to the sidewalk that passes along the south side of Lake Street. As they left the arena she saw people getting into their cars in the PMC parking lot. A few cars had started to drive towards the parking lot exit. There were people walking ahead of and behind them. As she was walking with her husband along the south side of Lake Street west of the intersection of Lake and Frank Nighbor Streets, a car approached their location going at a rate of speed that, in her opinion, was higher than it should have been going. This was the first vehicle she had noticed driving on Lake Street while walking along the sidewalk. Ms. Cotnam said that she and her husband were ahead of the crowd leaving the arena after the game. She saw the vehicle go through the intersection in a westerly direction. She noticed it was going fast enough to prompt her to yell out, “slow down” as the vehicle went by. She said to her husband that “that guy was going too fast.” A moment later she heard a thud sound.
Evidence of Craig Edmonds
[ 9 ] Craig Edmonds was at the hockey game that night as well. He is 50 years old. Mr. Edmonds is a real estate agent whose office is about 500 feet east of the PMC. That night he was at the game with his family. As usual they parked in the parking lot at his office and walked west on Lake Street to the arena. After the game they exited into the PMC parking lot and walked to the far corner of the parking lot where it meets the sidewalk on Lake Street. They were in a group of about 10 to 15 people walking in the same direction. Mr. Edmonds thinks that by the time they had crossed the parking lot, there were vehicles exiting the parking lot onto Lake Street. When they were about 40 feet west of the intersection of Lake and Frank Nighbor, Mr. Edmonds heard a loud engine sound and looked up to see a vehicle pass by. He was startled by the loud sound which reminded him of a racing sound. The vehicle was to his left at about a 45 degree angle when he saw it travelling west. The situation reminded him of a kid showing off with his friends in the car. He said he thought the vehicle was going way too fast. He said he was “beside himself” to see a vehicle going that fast. He watched it go by but as he followed it his view became obstructed by a group of people walking behind him. He said it was a dark-coloured vehicle. A moment later he heard a thud then the sound of people yelling. In the morning he made a note of his recollection of what he had seen. He guessed that the vehicle was a Nissan Juke or a mini Cooper. [ 10 ] In cross-examination he estimated he was about 60 feet from the intersection when he saw the vehicle. He didn’t see it stopped at the traffic light. He didn’t recall hearing the shifting sounds of a standard transmission. He agreed that a 4 cylinder engine tends to rev higher than an eight cylinder engine.
Evidence of Vicki Hoffman
[ 11 ] Ms. Hoffman is 39 years old. She works with her husband in a landscaping and property maintenance business. That night she was working at a location near Nelson and Elizabeth Streets. Nelson Street becomes known as Lake Street a few blocks east of her location. She and her husband were taking recycle boxes to the curb. He was in a different location than she was. Ms. Hoffman was standing near their vehicle which was parked along the road on the north side. Her two children were in their vehicle which was a full size pick-up truck. She heard a vehicle approaching at a high rate of speed from the east. She could hear it accelerating. She was concerned it might hit the Hoffman vehicle which was close to the edge of the road near a spot where there is a slight bend in the road. It was about 9:00 p.m. or a little later. The vehicle she observed go by was a blue RAV4 with a spare tire mounted on the outside of the vehicle at the back. She was standing close to the road and could feel the force of the wind as the vehicle went by. She reached for her cell phone to call 911 to report the vehicle because it was speeding but the battery in her phone was dead. She called the police service the next day to report what she had seen.
Evidence of Allan Roettger
[ 12 ] Mr. Roettger is 61 years old. He frequently attends Lumber King games with his friend, Pierre Labre. He was at the game on the night in question. They parked in the north parking lot across from the PMC. When the overtime period ended they left the building as the 3 star selection was underway. The arena was still quite full. They exited into the parking lot. There were as many as 60 people in the vicinity of the parking lot. As they reached the south side of Lake Street they were part of a group of about 15 people. He saw pedestrians across the street and walking along the edge of the street adjacent to the curb. A vehicle travelling east on Lake Street stopped to allow the pedestrians to cross. As Mr. Roettger stepped from the sidewalk onto the street to cross to the north side, he heard the sound of a vehicle accelerating so he stopped and as he did, a vehicle travelling westbound went by at a high rate of speed. It was a blue Toyota RAV4. He thought it may have been going 40 to 50 km per hour. Mr. Roettger said he thought the speed limit in town was 30 km per hour. He thought the vehicle was going fast considering the situation outside the PMC. He heard two thumps. He saw the brake lights come on. The second thud was very loud. He thought the vehicle had hit another car.
Evidence of Douglas Layden
[ 13 ] Mr. Layden is 36 years old. He has been a member of the Canadian Forces since 2002. He goes to a couple of games a year with his son. He was at the game on the night in question. He parked east of the PMC on Lake Street. They stayed until the 3 star selection was completed. He and his son exited the building into the PMC parking lot. Numerous vehicles were getting ready to leave the parking lot and a few had already left. Most of the exiting vehicles were turning right onto Lake Street. Mr. Layden and his son walked towards the arch structure near the northeast corner of the parking lot. He referred to it as the gazebo. When they got to the gazebo there were 10 to 15 people walking ahead of them as they headed east on the south side of Lake Street. He heard the sound of a vehicle that was about 50 feet west of the intersection of Lake and Frank Nighbor Streets. He said he heard a loud muffler sound which I took to mean a loud exhaust system. The vehicle sounded like it was accelerating. It seemed to him that the vehicle was exceeding the speed limit which he understood to be 50 km per hour. Then he heard a thump sound like the sound of a pedestrian being struck. He called 911. He did not observe the vehicle swerving or driving erratically before the collision.
Evidence of Kenneth Brown Sr.
[ 14 ] Mr. Brown is 74 years old. He was the first pedestrian who was struck by the vehicle. He was walking with his daughter-in-law Deanna Brown. They crossed Lake Street to get to the north parking lot. He doesn’t recall seeing other pedestrians cross the street at the same time that he crossed with his daughter-in-law. They turned left on the far side of the street and walked along the edge of Lake Street on the north side in a westerly direction. Ms. Brown was walking a few steps in front of him. He was wearing dark clothing. He had taken a few steps along the edge of the road when he heard a car behind him with its motor revving. He saw Ms. Brown step up onto the curb and he was in the process of doing the same thing when he was hit. There was a street light near where they crossed Lake Street but the light was dim. In cross-examination he agreed that the sound of the vehicle was consistent with the sound of a vehicle accelerating from a traffic light.
Evidence of Chad Leblanc
[ 15 ] Mr. Leblanc is 20 years old. He is a student at the Royal Military College. He was at the hockey game on the night in question with his sister who is 18 years old. They started to leave at the end of overtime but before the 3 star selection. They were parked in the north parking lot across the street. Many people were leaving at the same time they were. They approached Lake Street at a location west of the PMC entrance. The vehicles in the eastbound lane of Lake Street stopped to let them cross. There were two people ahead of them crossing at the same time. As the people in front of them approached the center line of the road, he heard a revving sound. He put his arm up in a protective reaction to block his sister from going forward. The engine sounded loud like a vehicle was accelerating. He first saw the vehicle when it was about 10 yards to his right. When the vehicle was about 10 yards past them he heard a thud. He thought the vehicle had hit another car. He saw the brake lights come on and the vehicle went into a skid. He heard more thuds then the vehicle came to a stop. He thought the vehicle was travelling fast. He agreed with the suggestion that while there was a street light near his location, it was darker further down the street.
Evidence of John Milvain
[ 16 ] Mr. Milvain is 26 years old. He is a corporal in the Canadian Forces. He was at the game with his fiancée. That night he parked in a location at the northeast corner of the intersection of Lake Street and Frank Nighbor Street. After the game they exited into the parking lot and walked to the northeast corner of the parking lot towards the sidewalk on the south side of Lake Street. When Mr. Milvain was about 5 metres from the street in the vicinity of the arch he saw a vehicle driving at what he described as a pretty good clip then he heard a thud and saw a pedestrian rolling down the street after being hit. He saw the brake lights come on after the thud. The vehicle attracted his attention because of its high rate of speed. There were 20 to 25 people in his vicinity, some of whom were walking east on Lake Street. He thought the lighting in the area was good.
Evidence of Jared Baillie
[ 17 ] Mr. Baillie is 41 years old. He is a member of the Canadian Forces. He did tours in Bosnia and Afghanistan. He knew the deceased, Mr. Hall, from their military service together. He was at the hockey game that night with his wife, their two children and another child who lived with them. Mr. Baillie had parked his car in a parking lot off Lake Street east of the PMC. They stayed for the entire game and the 3 star selection was underway as they left the building. There were about 40 or 50 other people leaving at the same time as them. They stopped for a moment near the eastern edge of the parking lot near the sidewalk. He was facing west and saw people in small groups, maybe 15 or 20 in all, walking across Lake Street outside the arena. He heard the sound of a vehicle winding up. He said he turned to look in the direction of the sound and saw a vehicle about 25 to 30 feet away going rather fast considering that people were leaving the arena. He saw some people who were crossing the street scatter, and then he saw the brake lights go on followed by a thump sound. When he first saw the vehicle it was on the west side of the intersection of Lake and Frank Nighbor Streets. There were people walking east on the south side of Lake Street and crossing Lake Street to get to the north side. Mr. Baillie said the vehicle swerved slightly after the brake lights came on. He ran to the first victim then on to the second victim who he recognized as Mr. Hall. He estimated the speed of the vehicle at 60 to 80 km per hour based on his experience and the revving sound of the engine. Mr. Baillie said the road was wet at the time. He thought the vehicle was driving fast considering the people in the area.
The Evidence of Deanna Brown
[ 18 ] Ms. Brown is the daughter in law of Kenneth Brown Senior, the first pedestrian struck by the vehicle. She is 51 years old. She was walking with Mr. Brown from the arena while her husband went on ahead to start their car. They crossed to the north side of Lake Street together then turned left and walked along the north side of the street on the edge of the pavement next to the curb. As she was walking along the curb, she saw other pedestrians crossing Lake Street diagonally about 12 feet away. She heard a sound that was like the revving of a race car engine and looked back over left shoulder. Mr. Brown was 2 or 3 feet behind her and another person was behind him, walking in the same direction as they were. She tried to get off the road by stepping onto and over the snowbank. Something struck her in the back, it may have been Mr. Brown who was propelled into her after he was hit, and she was thrown about five feet by the impact.
Evidence of Christopher Blackstock
[ 19 ] Mr. Blackstock is 53 years of age. He was at the hockey game. He parked his vehicle on Frank Nighbor Street. After the game, he walked through the PMC parking lot towards the arbour at the northeast corner of the lot. This area was not well-lit. He saw a vehicle moving extremely fast coming from the intersection of Lake and Frank Nighbor Streets towards the Christie Street hill (which would be west of the PMC). He also used the words “extraordinarily fast”. There was a group of three people in his area on the sidewalk as the vehicle drove by.
The Police Witnesses
Constable Scott Wood
[ 20 ] Cst. Wood has been with the OPP since July 2013 and prior to that was a member of the Pembroke Police Service since 2008. On January 11, 2015 he was working the night shift doing general patrol duty as a uniformed officer. The temperature was about -8 degrees C. when he started his shift at 7 p.m. [ 21 ] He was dispatched to the scene and arrived there at about 9:20 p.m. There was no precipitation at the time and the road was bare but wet. He took the names and addresses of witnesses and marked the area with police tape to protect the scene. He noted the location of debris from the collision on the road and marked it with chalk or pylons. A Toyota RAV4 vehicle was stopped on the road between the vehicle entrance to the parking lot on the north side of the road and the pedestrian walkway to the same parking lot which was east of the vehicle entrance. There were skid marks in the west bound lane. He thought they were about 20 feet in length and marked the skid marks with chalk. He marked the locations where two of the pedestrians who had been struck were lying. At about 10:30 p.m. a light snow began to fall and he covered the scene with tarps. [ 22 ] About two months later Cst. Wood took a video of the area on Lake Street in the vicinity of the PMC. He was attempting to make a recording that would depict conditions similar to the night in question. He chose a night when there was a Lumber King game at the PMC. There is video from both before the game and the traffic pattern after the game was over, as well as depicting pedestrians leaving the area after the game. He purported to take readings of the speed of vehicles passing along that portion of Lake Street. A voir dire was held respecting the admissibility of the video but ultimately defence counsel did not challenge its admissibility. The video was marked as an exhibit but I attach very little weight to the video and none to the reported speeds of the vehicles as displayed on the video recording. The size of the crowd on the night the video was taken was similar to the crowd on January 11 th . The only finding that I am prepared to make specifically regarding the video is that it took about 15 minutes for pedestrian and vehicular traffic to subside following the conclusion of the game and I think it is reasonable to infer that this is similar to the time usually taken for a similar number of fans to disperse following a Lumber Kings game. [ 23 ] Cst. Wood was shown a series of photographs taken by another officer the night of the accident. He said he thought the photos tended to be darker than the level of light he experienced while at the scene. [ 24 ] He examined the vehicle at the scene. He did not see any evidence of drugs, drug paraphernalia or evidence that would suggest the driver had been drinking. There was no evidence of distracted driving involving a cell phone. He said the vehicle was equipped with snow tires and the tires were in decent shape. [ 25 ] His report indicated that the deceased, Mr. Hall was crossing the street without the right of way and that the other two victims, who I take to mean Deanna Brown and her father-in-law Kenneth Brown, were walking on the roadway in the direction of the flow of traffic.
Evidence of Cst. Michael Robert Mahon
[ 26 ] Cst Mahon has been a police officer with the OPP since 2002. [ 27 ] He was dispatched to the scene at 9:16 p.m. He observed the RAV 4 on Lake Street near the entrance to the PMC. One of the victims was lying on the road in front of the vehicle. Another victim was being attended to nearby. He closed the road to traffic. Someone pointed out Mr. Laverdure as the driver. He was very upset and sobbing. Mr. Laverdure was eventually cautioned, arrested and placed in the patrol vehicle. Cst. Mahon took Mr. Laverdure to the hospital at about 10 p.m. because he appeared to be in shock.
Evidence of Stewart Unhola
[ 28 ] Mr. Unhola recently retired from the OPP after 31years of service. Prior to his retirement, Mr. Unhola worked as a technical collision investigator for about 16 years. In this case he was the collision mechanic which meant that his job was to check the vehicle for possible defects. He found none. He inspected the brakes and the steering and did a general visual inspection. There were no mechanical problems that could be blamed for the accident. In fact, he said that the vehicle was in surprisingly good shape for its age. It was not equipped with an ABS braking system. The tires were in satisfactory condition. It was equipped with a standard, rather than an automatic, transmission. He observed that the vehicle was noisy, probably due to an exhaust leak.
Evidence of Cst. Luc Poirier
[ 29 ] Cst. Poirier is a technical investigator and accident reconstructionist with the OPP. He joined the OPP in 2002 after previous employment with the RCMP and the Midland Police Service. He is an experienced police officer who has had extensive training in the field of technical collision investigation. The defence did not contest his qualifications as an expert witness. [ 30 ] He arrived on the scene at about 12:30 a.m. from Ottawa and remained there through the night as he conducted his investigation. Another officer attended with him and took numerous photographs. Cst. Poirier took readings of various distances and angles which he later plotted onto sketches that were included in his report. He took note of the location and of street lights in the area and the amount and type of light that illuminated the area of the collision. He concluded that there was a medium level of illumination from the artificial lighting in the vicinity of the PMC and this portion of Lake Street. He measured the skid marks at about 21 meters. He plotted the debris field. He performed tests with an accelerometer using his police vehicle to calculate the speed of the subject vehicle at the point of collision with Mr. Hall. He analyzed and recorded the damage to the vehicle. In his opinion there were multiple instances of impact damage to the front of the vehicle. The damage on the right or passenger side of the fender and the side mirror damage was probably from the collision with Mr. Brown. The damage on the left or driver’s side was more extensive and was likely caused by the collision with Mr. Hall. This included the large circular pattern to the fractured windshield that appeared to Cst. Poirier to have been caused by Mr. Hall’s head striking it. There was also significant damage in the front left area of the hood as a result of Mr. Hall’s body wrapping around the front of the vehicle upon impact before being thrown a distance estimated to be between 26 to 40 meters. Obviously Mr. Hall was struck with considerable force. [ 31 ] Cst. Poirier estimated the speed of the vehicle at the time of impact using two different methods. Both methods involved the use of mathematical formulas and specialized computer programs. The first method was referred to as the skid to stop method and was based on various factors including the estimated slipperiness of the road and the length of the skid marks. The second method was referred to as the throw distance calculation which was based in part on the estimated trajectory of Mr. Hall’s body after impact. [ 32 ] The skid to stop method resulted in an estimated speed at the time of impact with Mr. Hall of about 50 km per hour. Cst. Poirier said this was the absolute minimum speed of the vehicle and the speed was probably somewhat greater. He explained that this method did not take into account the decelerating effect of the collision with Mr. Hall’s body. There are two aspects to this: the energy required to de-form the front and windshield parts of the vehicle and the energy transmitted by the vehicle to Mr. Hall to throw him a considerable distance in front of where the vehicle eventually came to rest. Both factors had the effect of absorbing energy that is not factored into the formula. I accept Cst. Poirier’s opinion that these unaccounted for aspects of energy dissipation tend to understate the actual speed of the vehicle using the slide to stop method. [ 33 ] Defense counsel correctly noted that this methodology depended on the use of an accurate factor for the co-efficient of friction and that there is variability in the result depending on the assumptions used. This means that there can be a range of results that reduce the accuracy of the estimate. The vehicle could actually have been travelling at a lower speed than the speed suggested by Cst. Poirier’s calculations. In particular, defense counsel questioned the reliability of the friction value derived from Cst. Poirier’s use of an accelerometer on his police vehicle. [ 34 ] The throw distance method of calculating speed resulted in a range of possible speeds from a low of about 60 km per hour to a high of about 76 km per hour. Like the slide to stop method, numerous variables and assumptions can affect the accuracy of the estimates. One significant variable is derived from Mr. Hall’s assumed path in crossing Lake Street at the time of the collision. Cst. Poirier used the assumption that resulted in the lowest speed estimate. In fact, he testified that it was his practice generally to use conservative assumptions that gave the benefit of the doubt to Mr. Laverdure. [ 35 ] Based on his training and experience, Cst. Poirier said that his best estimate of the vehicle speed at the time of collision, using conservative assumptions, was 60 km per hour. He agreed that there was an error rate of plus or minus 10% or 12 km per hour. He did not think that the different speeds resulting from the different methodologies were inconsistent but rather he said that the slide to stop result tended to corroborate the throw distance result. I conclude from this that there is a fairly wide range of possible speeds depending on the method of calculation and the assumptions used but in the final analysis, I am prepared to accept his opinion respecting the probable speed of the vehicle when Mr. Hall was struck. [ 36 ] In addition, Cst. Poirier did some calculations respecting the speed at which the sequence of events occurred. He estimated that Mr. Laverdure’s perception and response time was in the range of two seconds. At 60 km per hour, the pre-impact position of the RAV4 would have been about 32 meters east of the impact area when Mr. Laverdure initiated full braking. At a speed of 50 km per hour, the distance falls to about 26 meters. It appears to me that Mr. Laverdure was traveling too fast to avoid a collision with whatever obstacle was in his path. Unfortunately, in this case the obstacles were two pedestrians. To make matters worse, Cst. Poirier said that both Mr. Brown and Mr. Hall would have been difficult to see because of the level of illumination from the lighting nearby and the dark clothing they were wearing.
The Applicable Legal Principles
[ 37 ] Crown counsel has the burden of proving Mr. Laverdure’s guilt beyond a reasonable doubt. This never changes. Mr. Laverdure chose not to give evidence which was his right. Like all accused persons, he is not under any obligation to testify. He also has the benefit of the presumption of innocence and this presumption remains with him throughout the trial unless and until Crown counsel proves his guilt beyond a reasonable doubt. [ 38 ] The issue in this case is whether Crown counsel has proven beyond a reasonable doubt that Mr. Laverdure was driving dangerously on the night in question and that it was this dangerous driving that caused the death of Mr. Hall. Proof of the offence of dangerous driving requires more than proving someone was driving carelessly or negligently. The Supreme Court of Canada has said that simple carelessness, to which even the most prudent drivers may occasionally succumb, is generally not treated as criminal conduct punishable pursuant to the Criminal Code. In 2008 Justice Charron said in the Beatty case that “if every departure from the civil norm is to be criminalized, regardless of the degree, we risk casting the net too widely and branding as criminals persons who are in reality not morally blameworthy.” [1] [ 39 ] To be guilty of dangerous driving an accused must be shown to have driven in a manner that amounts to a marked departure from the standard expected of a reasonable person in the same circumstances. In order to prove the charge, Crown counsel must show how and in what way the driver went markedly beyond mere carelessness. In the Roy case in 2012, the Supreme Court of Canada said that a single momentary error in judgment with tragic consequences was not enough to establish criminal culpability. [2] The dangerous driving must be placed in a context. This is sometimes referred to as the fault element.
The Application of the Legal Principles to the Facts
[ 40 ] The conduct which constituted the dangerous act may be briefly stated. Mr. Laverdure was driving too fast. I accept the evidence of Cst. Poirier that his speed at the moment the vehicle collided with Mr. Hall was about 60 km per hour. This is an approximation based in a scientific method but subject to numerous variables and assumptions. I would call it an educated guess. There is corroboration, however, in the observations of several witnesses. First, recall the evidence of Ms. Hoffman that she saw the Laverdure vehicle several blocks before it reached the PMC. She was sufficiently alarmed by the rate of speed that she thought of calling the police. Further along Lake Street, near the PMC, Donna Cotnam was approaching the intersection of Lake and Frank Nighbor Streets when she saw Mr. Laverdure accelerate west from the intersection. She shouted “slow down” at the vehicle as it passed. Mr. Edmonds said that his observation of the vehicle gave him the impression of a youthful driver showing off. Mr. Labre, a trained vehicle mechanic, said he heard the sound of hard acceleration as the vehicle approached the PMC. He said the engine sounded like someone had “hammered it down” which I took to mean pressing down on the accelerator pedal. In addition, the extensive damage to the vehicle that resulted from the collision with Mr. Hall and the estimated distance that Mr. Hall’s 250 pound body was thrown are factors that are suggestive of a high rate of speed. Recall as well that Cst. Poirier said that in his opinion the vehicle speed at the moment of impact was 60 km per hour and that the brakes had been applied before the collision with Mr. Hall. Some indeterminate amount of deceleration had likely occurred before the collision. [ 41 ] I would like to comment on the importance of taking a cautious approach in assessing the reliability of eye witness testimony and observations. In this case, there were significant variations between the observations of various witnesses on certain issues. There was a consensus that Mr. Laverdure was driving at a fast speed. Speed is difficult to assess at the best of times. Here, the sequence of events occurred very quickly. The vehicle appears to have had an exhaust leak that would have increased the sound of the engine. As well, vehicles equipped with standard transmissions rev higher than cars with automatic transmissions as the transmission shifts from first to second to third gear. [ 42 ] In my view, however, when all of the evidence is considered together, including the witnesses’ observations, the expert’s opinion and the photographic evidence of the damage to the vehicle, these factors are all corroborative of the finding that Mr. Laverdure was driving at a high rate of speed on a city street. [ 43 ] Next, the fast driving needs to be put in context before the driving can be said to be dangerous. Clearly, there was activity in the vicinity of the PMC as Mr. Laverdure approached that location but was this activity sufficiently apparent to someone in Mr. Laverdure’s position to cause a reasonable person to slow down and proceed cautiously? In my view, it was. I start with the acknowledgement that as Mr. Laverdure drove along Lake Street, only the initial surge of exiting spectators was underway. There was still a large group of spectators inside the arena. I find that the street had not yet filled with vehicles leaving the parking lot which would have been an obvious sign that something was going on at the PMC that warranted extra caution. There was evidence, however, which I accept, that pedestrians who were leaving the arena had reached Lake Street and were walking east in small groups along the sidewalk. There is also evidence that some pedestrians had reached the intersection with Frank Nighbor Street and were crossing the street at that location. I find that at the same time as Mr. Laverdure was driving west towards the PMC, spectators leaving the arena had reached the south side of Lake Street in front of the PMC, intending to cross the street to the north parking lot. I accept the evidence that as Mr. Laverdure continued to approach the PMC, an eastbound vehicle on Lake Street stopped to permit pedestrians to cross in front of it. In addition, some pedestrians had already reached the north side of Lake Street and were walking along the edge of the street towards the entrance to the north parking lot. To some extent, the pedestrians crossing in front of the stopped vehicle would have been illuminated by the vehicle’s headlights. It also seems reasonable, based on the evidence including the photographic record, to infer that as Mr. Laverdure approached the PMC, car headlights in the PMC parking lot would have been visible to him but to what extent is uncertain. He would also have been able to see spectators in the parking lot walking through and around the cars that had been started (and therefore their lights were on) and that were getting ready to exit onto the street. [ 44 ] In these circumstances, a reasonable person in Mr. Laverdure’s position would have slowed down and proceeded cautiously, realizing that some sort of event was underway or had just ended, it being 9 p.m. on a Sunday night in January, and that there was an unusual amount of pedestrian traffic was in the area that warranted a reduction in his speed. [ 45 ] Instead, the evidence supports the finding that Mr. Laverdure accelerated quickly in a westbound direction from the intersection towards the PMC without regard for the need to proceed with extra vigilance. Even as he approached the pedestrians seeking to cross Lake Street in front of the PMC, he did not apply his brakes until the first impact. In this regard, I accept the evidence that his brake lights went on at or after the first impact and not before. [ 46 ] To summarize, the presence of numerous pedestrians at various locations in the vicinity of the PMC, at least some of whom would have been visible to a driver approaching along Lake Street from the east, the presence of a stopped vehicle in the eastbound lane facing Mr. Laverdure, and the presence of vehicles getting ready to leave, if not actually leaving, the PMC parking lot with spectators who were leaving the arena walking among the cars in the parking lot, taken together, put the operation of the Laverdure vehicle in a context where the speeding became dangerous, such that I am satisfied beyond a reasonable doubt that Mr. Laverdure’s driving was a marked departure from what a reasonable person would expect in the circumstances. [ 47 ] There will be a finding of guilty in relation to the single count of the indictment.
Mr. Justice Martin James
DATE RELEASED: September 22, 2016