Court File and Parties

COURT FILE NO.: CR-16-40000200-0000 DATE: 20170322 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – ORRELL HIGGINS Respondent

Counsel: Paul M. Alexander, for the Crown Lilit Izakelian, for the Respondent

HEARD: January 30 – February 7, 2017

Judgement

A.J. O’Marra J.

[1] Glen Duek, a tanker truck driver drove his vehicle southbound on Allen Road, a multi-lane highway at approximately 5:45 a.m. Saturday, November 22, 2014 after making a left turn from Sheppard Avenue. A single motor vehicle followed him in the left turn and then passed him in the inside right lane at a substantially faster rate of speed than he was travelling. He continued driving southbound in the middle lane of three toward an upcoming intersection with a green light. The next thing that Mr. Duek saw was the motor vehicle that had passed him flying through the air to the left into the northbound lanes at the intersection.

[2] Orrell Higgins, the driver of the motor vehicle, a 2014 Toyota Camry, with front seat passenger O’Shane Guthrie had driven straight into the rear left side of a transport truck and trailer without braking or steering the vehicle to avoid impact. The front end of the Toyota Camry was crushed in and the impact sheared off the dual wheel assembly and axle from the transport truck trailer. Mr. Higgins crawled out of the wreckage with minor injuries. Mr. Guthrie had to be extricated. He received serious injuries. Both were transported to Sunnybrook Health Science Centre for treatment.

[3] Mr. Higgins is charged with dangerous driving causing bodily harm contrary to s. 249(1) of the Criminal Code; criminal negligence in the operation of a motor vehicle causing bodily harm contrary to s. 221 and impaired operation of a motor vehicle causing bodily harm contrary to s. 255(2) of the Criminal Code.

[4] Let me first outline the requirements of dangerous driving as set out in the Criminal Code:

s. 249(1) Everyone commits an offence who operates

(a) a motor vehicle in a manner that is dangerous to the public, having regarding to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place.

[5] Dangerous driving as an offence of negligence and it must be assessed using an objective standard. In Regina v. Hundal, [1993] 1 S.C.R. 867 at para. 35 Cory J. stated:

Thus, it is clear that the basis of liability for dangerous driving is negligence. The question to be asked is not what the accused subjectively intended but rather whether, viewed objectively, the accused exercised the appropriate standard of care. It is not overly difficult to determine when a driver has fallen below the acceptable standard of care. There can be no doubt that the concept of negligence is well understood and readily recognized by most Canadians.

[6] In Regina v. Beatty, 2008 SCC 5, [2008] S.C.J. No. 5 at para. 43, Charron J. restated the analytical framework in the assessment of dangerous driving cases first articulated in Regina v. Hundal as follows:

(a) The actus reus: the trier of fact must be satisfied beyond a reasonable doubt that, viewed objectively, the accused was, in the words of the section, driving in a manner that was “dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place”.

(b) The mens rea: the trier of fact must also be satisfied beyond a reasonable doubt that the accused’s objectively dangerous conduct was accompanied by the required mens rea. In making the objective assessment, the trier of fact should be satisfied on the basis of all the evidence, including evidence about the accused’s actual state of mind, if any, that the conduct amounted to a marked departure from the standard of care that a reasonable person would observe in the accused’s circumstances. Moreover, if an explanation is offered by the accused, then an order to convict, the trier of fact must be satisfied that a reasonable person in similar circumstances ought to have been aware of the risk and of the danger involved in the conduct manifested by the accused.

[7] In Regina v. Roy, 2012 SCC 26, [2012] 2 S.C.R. 60 at para. 1, Cromwell J. observed that dangerous driving like all criminal offences consists of two components: prohibited conduct – operating a motor vehicle in a dangerous manner and a required degree of fault that is “a marked departure” from the standard of care that a reasonable person would have observed in all the circumstances. It is only a marked departure that justifies the fault requirements for this serious criminal offence. The fault component is critical as it ensures that criminal punishment is only imposed on those deserving a stigma of a criminal conviction, while a mere departure from the standard of care will justify imposing civil liability.

[8] While the manner of driving may result in serious and tragic consequences, such as bodily harm or death, the trier of fact must not leap from such consequences of the driving to the conclusion the driving was dangerous. Rather, “there must be a meaningful inquiry into the manner of driving in the circumstances”, see Regina v. Roy at para.35, and Regina v. Beatty at para. 46.

[9] As to the offence of criminal negligence causing bodily harm as set out in the Criminal Code, s. 219(1) states:

Everyone is criminally negligent who

(a) in doing anything or

(b) in admitting to doing anything that it is his duty to do, shows wanton or reckless disregard for the lives or safety of others.

[10] In Regina v. Markos, [2017] O.J. No. 87 (SCJ), E.M. Morgan J. noted:

While this offence, as applied to driving a vehicle, connotes a similar standard of “marked departure” from the required standard of care as does the section 249 dangerous driving offence, the conduct that it describes is even more severe. The Court of Appeal has stated that, “the requisite wanton or reckless disregard may…be inferred from proof of conduct that constitutes a marked and substantial departure from that expected of the reasonable driver”: Regina v. Willcock, [2006] O.J. No. 2451, at para. 29.

[11] Further, as observed in Markos at para. 34 criminal negligence causing bodily harm requires a person to recklessly disregard all risk or avert to the risk he is creating and to create it anyway. The mental element of the criminal negligence offence is measured on a test of “wanton disregard”, which, while similar, sets a more stringent test than the marked departure test for dangerous driving.

The Scene of the Collision

[12] Allen Road is a major arterial roadway that consists of five lanes of travel, three lanes for southbound traffic and two lanes for northbound. Concrete barriers separate the two directions of travel. In addition to the three southbound travel lanes at the intersection where the collision occurred there is a left turn lane into the Downsview TTC station parking lot to the east of the roadway. The speed limit for this section of the Allen Road is posted at 70 km. per hour. The collision occurred on a straight and level section of the roadway, which at the time was in good repair. The roadway is lighted with lamp standards every 60 meters.

[13] The intersection, which is traffic light controlled, provides access from Allen Road to a driveway leading to a service entrance on the west side for a Toronto Transit Commission construction site. It is from this entrance that the Mack truck with the live bottom feeder trailer was exiting at the time of the collision.

[14] There are no overhead lamp standards at the intersection. On both sides of the driveway/entrance, there are embankments of approximately one and a half to two meters in height and on top of which is a chain linked fence. Approximately 90 metres north of the intersection, on the right shoulder of the southbound lanes of Allen Road was an orange temporary construction “trucks entrance” warning sign, located just to the south of a lamp standard.

[15] Mr. Resham Thind, the driver of the truck, arrived at the company yard in Bolton about 4:30 am to pick up his Mack truck with a live bottom feeder trailer. Mr. Thind testified that he check to ensure that his truck was in working order including his lights before departing to pick up his load.

[16] In terms of the truck lights in addition to headlights, the tractor has a number of amber lights across the top of the cab and on the side and brake lights on rear of the tractor. On each side of the trailer there are two amber side clearance lights located in the front and middle of the trailer and one red rear side clearance light. On the back of the trailer are four lower rear red lights and three upper rear red lights. The trailer also has a “retro-reflective tape” installed along its full length (red and white) above the wheel and tire fenders designed to reflect lights directed toward it.

[17] After inspecting his tractor trailer, he was dispatched to the TTC construction site on Allen Rd to pick up approximately 22,000 to 24,000 tons of mud to be driven and dumped in Barrie, Ontario. He arrived at the site at approximately 5:40 a.m.

[18] After his trailer was loaded, which took about 20 minutes, he obtained his load slip, checked his truck and proceeded to the exit of the site to make a right hand turn onto the southbound lane of Allen Road to travel to highway 401.

[19] He proceeded to the exit and faced a red light. He said he looked to the north and he saw two sets of headlights he estimated to be approximately 500 to 600 metres away. He proceeded to make a right hand turn driving his vehicle in an arc through the right lane, middle lane and left lane. As he turned the tractor into the left lane, he heard a loud sound from the rear of the trailer. He pulled the vehicle into the right lane and stopped to check what had happened. He saw that one of the rear sets of trailer wheels on the left side of the trailer was missing, and in the northbound lanes on the other side of the intersection he saw a damaged vehicle.

[20] Mr. Higgins had returned from a vacation in Jamaica on November 21 arriving home in the evening. He believed he slept most of the flight and as a result did not feel tired. He met up with his cousin, O’Shane Guthrie and a friend of his cousin, whose name he could not recall. They went to a party at a club arriving sometime between 12:30 and 1:00 a.m. He had bought a bottle of Hennessey whiskey, from which he said he had two self-poured drinks. He testified that he sipped his second drink because he could see his cousin, who had driven to the party, was getting “a little tipsy” and his cousin’s friend was getting quite drunk. He realized he would be the one to drive home.

[21] He believed that they left at about 4:00 a.m. However, it was more likely closer to 5:00 a.m., based on the travel time to drive to a number of locations he said he drove to after leaving the party, including dropping off his cousin’s friend, to the time of the accident at approximately 5:45 to 6:00 a.m.

[22] He recalled making a right hand turn from Sheppard Ave. onto the Allen Road behind a tanker truck. His intention was to drive down the Allen to the 401 to take it to the Black Creek exit enroute home. The tanker truck ahead of him was moving slowly, approximately 50 to 60 km per hour. He passed it on the inside lane and moved to the middle lane and continued southbound. He saw the intersection ahead with a green light. The next thing he remembered was waking up in “dismay” as he described it. He looked over and saw his cousin unconscious, with his knees pushed up against his chest in the car wreckage. He crawled through the front window and went around to try and help his cousin. He felt for his pulse and checked his breathing. Shortly after he recalled someone grabbing his shoulder and directing him to sit in a truck, then being seen by paramedics.

[23] At the scene, Mr. Higgins admitted to a paramedic, Lorne Burns, who asked him if he had been drinking that night he had been earlier that night, but stopped because he knew he would be driving home. Mr. Burns did not recall any noticeable smell of alcohol coming from Mr. Higgins.

[24] After Mr. Guthrie was extricated from the wreckage with serious injuries, both of them were taken to the hospital for treatment.

[25] At the hospital a blood sample was taken from Mr. Higgins at approximately 7:20 a.m. for medical purposes. The sample was tested at the hospital for alcohol content and found to contain blood/alcohol content of 16 millimoles per litre of serum. The results were submitted to the Centre of Forensic Science for an assessment as to Mr. Higgins’ blood alcohol concentration at the time the collision occurred at approximately 5:45 a.m. He was found to have a blood alcohol concentration (BAC) of approximately 63 to 94 milligrams of alcohol in 100 millilitres of blood at the time of driving.

[26] Mr. Higgins testified he saw the green light at the intersection as he drove toward it, and he did not see the truck. He had not fallen asleep and he was not intoxicated.

[27] O’Shane Guthrie testified that he has no memory of being in the car or any events leading up to the accident. His last memory was picking his son up from his mother’s home the day before and then waking up in the hospital.

[28] He said he was in the hospital for about a month during which he received treatment for injuries to his stomach, hand and brain. He described his thinking as slower now and he is unable to work. He has a personal support worker who assists him seven days a week to organize his days, his schedule and keep appointments.

[29] Aaron Putman is a Toronto Police Service collision re-constructionist. He attended the scene at approximately 9:20 a.m. on November 22, 2017 and made observations of the scene of the collision as well as the vehicles involved. He also took a series of photographs of the roadway, the intersection and vehicles. The Toyota Camry had mostly crushed damage to the front left of the vehicle into the passenger compartment. The vehicle was located in the northbound lanes of Allen Road facing southwest in the passing lane. On the other side of the median in the southbound left turn lane was located the sheared axle wheel and dual tire assembly from the trailer. Based on gouge marks in the pavement caused by the under-carriage of the Toyota Camry being forced downward on impact with the trailer, the point of collision was determined to be in the middle lane entering into the intersection.

[30] The event data recorder (EDR), a device installed by the manufacturer in the Toyota Camry records the last few seconds of the vehicle’s operations pre-deployment of the air bags on impact in a collision. The data with respect to the Toyota Camry includes the speed of the motor vehicle in the last 4.6 seconds preceding collision, whether the brakes were on or off, the speed of the vehicle and degrees of turning of the steering wheel, and other data.

[31] An analysis of the data revealed that at the start of 4.6 second period the vehicle had been driving at 97 km per hour. At the point of impact the Toyota Camry was travelling at 117 km per hour. In the last 4.6 seconds of operation the vehicle sped up from 97 km. per hour to 117 km. per hour when it came into contact with the tractor trailer. There had been no application of the braking system, and the steering wheel had only moved 7.5 degrees left and back to 4.5 degrees right which indicated the vehicle was being driven in a straight line into the trailer without any braking or attempt to avoid the collision.

[32] Constable Putman determined, based on the speed data that at the start of the 4.6 seconds, the vehicle was 136.38 metres from the area of impact. At a speed of 117 km. per hour the distance required to stop was 156 metres. If the Toyota had been travelling at the speed limit of 70 km. per hour at a distance of 136 metres from the intersection the Toyota would have only required 65.58 metres, which includes 1.5 seconds reaction time to bring the vehicle to a stop. The stopping distance at 97 km. per hour was calculated to have been 110.33 metres, a distance which would have also permitted Mr. Higgins to bring the vehicle to a stop prior to impact. In this instance, the vehicle driven by Mr. Higgins accelerated from 97 km. per hour to 117 km. per hour over the final 136.38 metres and he drove straight into the side of the trailer without the application of brakes or turning of the steering wheel to avoid collision.

[33] Constable Putman as part of his investigation had the tractor positioned approaching the end of the driveway and he observed from the cab of the truck that the driver could see clearly past the berm to the intersection at the main entrance to the Downsview TTC station, 250 meters to the north. The front of the truck was visible to southbound traffic.

[34] Constable Putman observed that the mounds on the west side of Allen Road through which the entrance to the construction site passed did obscure the entrance. However, the tractor would be visible as it pulled forward to the stop line before entering the intersection.

[35] Constable Putman also had the tractor trailer positioned in the intersection relative to the gouging and scraping of the pavement made by the Camry on impact. He concluded from his examination that the truck at the time of collision was diagonally across all three lanes of the southbound Allen Road. At the angle in which it was situated at that point in the turn, the only lights facing southbound traffic would have been the side clearance lights of the trailer. The headlights of the tractor would have been facing southbound as it straightened out in the turn, and the taillights of the tractor would have been obscured by the mud flaps of the trailer. The taillights of the trailer would have been facing northwest toward the driveway that the tractor trailer had exited and may or may not have been visible to approaching southbound traffic.

[36] He observed that in looking at the configuration of the lighting and the angle of the tractor its rear lights would have been in the passing lane (left lane), the two side amber clearance lights would also be in the passing lane, whereas the rear trailer lights and the rear red side clearance lights would be in the curb lane. As a result, there would have been no lighting on the trailer in the area of the middle lane and the point of impact with the trailer. However, the retro reflective tape along the bottom of the trailer would have encompassed the three lanes, although at an angle to headlights of a vehicle in the southbound lanes approaching the intersection.

[37] The Toyota Camry was examined and found not to have had any mechanical failures that contributed to the collision.

[38] Constable Dalbinder Gill a commercial motor vehicle inspector for the Toronto Police Service attended the scene of the collision on November 22nd to inspect the Mack Truck 2012 and the damage to its trailer. He first observed the tractor trailer parked on the right side of the southbound lanes. He found that all of the lights on the truck and trailer were in good working order. He examined the wheel and axle assembly and concluded that it had been torn from the trailer as a result of the vehicle colliding with it. He testified that the wheel and hub were broken from the axle, a solid welded item. In his opinion it had come apart due to the impact of the collision.

[39] Mr. Duek testified that he is familiar with Allen Road having travelled it many times in his straight 24,000 liter tanker truck. He indicated that although the Allen Road was dark, given the time of day, he believed that all of the lamp standards were working.

[40] As he turned left from Sheppard Avenue southbound into the middle of Allen Road he was followed by a smaller motor vehicle that passed him on the inside lane at a speed, he described, significantly faster than he was travelling. He estimated that his speed was approximately 50 to 60 km. per hour. After the vehicle passed him, the next thing he saw it was flying in the air at the intersection to the TTC construction site. Based on the photographs taken during the investigation, Exhibit 4C, he estimated his distance from the intersection at the time the car went flying as approximately 160 meters away.

[41] He brought his vehicle to a stop and observed the driver crawl out through the front of the vehicle and start to wander down the roadway. He dialed 911 for emergency services, retrieved the fire extinguisher from his truck, and ran to the wreckage to try to assist with the person trapped in the vehicle.

[42] Mr. Duek said he saw that the intersection light ahead was green for southbound traffic. He did not see the tractor trailer in the intersection before he saw the motor vehicle fly through the air.

Impairment

[43] The results of Mr. Higgins’ blood sample were submitted to the Centre of Forensic Sciences for assessment of his blood alcohol concentration at the time of the collision. Laura Gorczynski, a forensic toxicologist testified that a serum alcohol concentration of 16 millimoles per litre for hospital analysis is equivalent to a blood alcohol concentration (BAC) of 63 mg of alcohol in 100 ml of blood.

[44] Based on an elimination rate of alcohol from blood ranging from 10 to 20 mg/per 100 ml of blood per hour, allowing for a plateau period of up to two hours, and no consumption of large quantities of alcohol beverages within 15 minutes prior to the incident, and no consumption of alcohol after the incident and before the sample was collected, the projected blood alcohol concentration at 5:45 a.m. was 63 to 94 mg of alcohol in 100 ml of blood.

[45] Ms. Gorczynski observed that the operation of a motor vehicle requires “the integrity of a number of sensory, motor and intellectual faculties, including divided attention, choice reaction time, judgment of speed and distance, risk assessment, vigilance, and vision. The degree of impairment is dependent on the blood alcohol concentration.” It was her opinion, based on review of relevant scientific literature that impairment with respect to driving becomes significant at a blood alcohol concentration of 50 milligrams per 100 millilitres and increases upward. In her scientific opinion an individual would be impaired in their ability to operate a motor vehicle at a BAC of 63 to 93 mg per 100 ml of blood.

[46] In response, defence counsel called Dr. Joel Mayer, Ph. D., forensic toxicologist and forensic science consultant, who agreed that Mr. Higgins estimated BAC at the time of the collision was in the range estimated by Ms. Gorczynski. However, he did not agree necessarily that all persons within that range of BAC had faculty impairment. He testified that scientific studies have indicated that some individuals within that range displayed no faculty impairment in the operation of a motor vehicle.

[47] He concluded that although alcohol related impairment was possible, it was his view that it could not be precisely determined whether he was impaired due to the variability associated with the estimated BAC at the time of the collision.

[48] He did note in his report that the authors of a recent review of scientific literature on this issue concluded: “There is convergent evidence, therefore a high degree of scientific confidence, in support of the conclusion that a BAC of 0.050% (50 mg /100 ml) impairs faculties required in the operation of a motor vehicle”. However, he noted that the scientific studies reviewed and previous publications did not support the proposition that all individuals would be impaired at a BAC of 50 mg/100 ml. The studies confirmed there is an individual variability with respect to the impairing effects of alcohol.

[49] Based on the results the point at which it could be said that all individuals would be impaired is in the range of 100 mg/100 ml of blood. The scientific certainty of impairment for all subjects occurred only when there is a BAC that reached 100 mg/100 ml of blood. In the range here, 63 to 93 mg/100 ml of blood, while there is a high likelihood of degradation of performance due to impairments, it is only at 100 mg /100 ml of blood where it can be said all individuals would be subject to impairment in the operation of a motor vehicle. As the BAC decreases, the scientific certainty decreases.

[50] I accept Mr. Higgins evidence he curtailed his drinking that night in anticipation he would be driving home because of his candor in the immediate aftermath of what was a confusing and calamitous event in which his cousin was seriously injured. When he was asked by the paramedic if he had been drinking it was exactly what he said he did – he had been drinking earlier, but stopped because he knew he would be driving home.

Analysis

[51] On the issue of impairment, while scientific certainty is not the standard I am to apply, but proof beyond a reasonable doubt, given the range of BAC readings in this instance, 63 to 93 mg/100ml and taking into consideration Dr. Mayer’s evidence of the individual variability of faculty impairment within that range, I am left with a reasonable doubt that Mr. Higgins was impaired in the operation of a motor vehicle by alcohol.

[52] On the issue of dangerous driving, the collision occurred in the circumstances of a vehicle being driven directly into the side of the trailer at a speed 47 km/h in excess of the posted limit of 70 km/h, with obvious inattention, as evidenced by an acceleration of the speed of the vehicle within the last 4.6 seconds from 94 k/h to 117 k/h, with no application of the brakes or any attempt of an avoidance maneuver over the final 136.38 meters to impact.

[53] In my view, Mr. Thind cannot be faulted. Even though the tractor trailer had to pass through a berm to exit the driveway, which makes it more difficult for southbound drivers to see the existing vehicle, he could see the approaching vehicles from his elevated position in the cab of the tractor. He exited and commenced his turn when the two southbound vehicles were at a safe distance, even at 250 meters. The tanker truck travelling the speed limit was at a safe distance when Mr. Thind executed his turn. He could not have anticipated that a car would pass the other vehicle on the inside lane and accelerate to a speed of 117 k/h into the intersection.

[54] How did Mr. Higgins not see the transport truck trailer? I note that the nearest light standard to the north of the intersection is approximately 60 metres away. There is no overhead lamp standard at the intersection on the west side. It was a poorly lit intersection, which may have been a factor. More likely, it was inattention.

[55] I bear in mind the observation made by Constable Putman as to the location of the trailer at the point of impact, on an angle situated diagonally across the three southbound lanes of the intersection, which would have obscured the lights of the tractor and the rear lights of the trailer with none of the side clearance lights in the middle lane. The truck and trailer may have been difficult to see as a result. Although, more likely inattention.

[56] I also consider the evidence of Mr. Duek, an experience truck operator and independent witness that as he approached the intersection, he made no observation of the presence of the transport truck and trailer, but saw only the green light and the vehicle ahead of him “flying through the air”. No doubt his focus was on the car.

[57] In the circumstances, there was speed, clearly an error in judgment and inattention on the part of Mr. Higgins. Speeding in excess of 47 km/h over the posted speed limit with a truck entrance ahead sign, and crashing into a tractor trailer fully engaged in a turn across the intersection, where there is evidence of inattention, - acceleration into the collision, no braking or avoidance maneuver – the manner of driving was objectively dangerous.

[58] However, there is no evidence in the circumstances of any deliberate intention on the part of the accused to create a danger for other drivers. If Mr. Higgins had been driving the speed limit and paying attention he would have been able to stop. More likely, Mr. Thind would have made his turn and cleared the intersection. In my view, Mr. Higgins was negligent in speeding and not paying attention which may satisfy the civil standard of liability, however I am not satisfied that there is a marked departure from the standard of care of a prudent person such that he would be aware of the danger created by the speed at which he travelled at that time and place.

[59] I am not satisfied beyond a reasonable doubt that a reasonable person in the accused’s position would have been aware at that time and place of the risk created by his conduct.

[60] In terms of criminal negligence causing bodily harm offence charge, without having found a marked departure from the standard of a reasonably prudent person in all of the circumstances, there is no evidence of a wanton and reckless disregard constituting a marked and substantial departure from that of a reasonable driver.

[61] In the result, I find Orrell Higgins not guilty of all counts on the indictment.

A.J. O’Marra J.

Released: March 22, 2017

Reasons for Judgment

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – ORRELL HIGGINS Respondent

REASONS FOR JUDGMENT A.J. O’Marra J.

Released: March 22, 2017