COURT FILE NO.: CR 17-43
DATE: 20180413
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
Yousef Romaizan
Defendant
Elaine Evans, counsel for the Crown
Joseph. Addelman, counsel for the Defendant
TRIAL HEARD: August 16, 2017 November 20,21,22, 23,24, 2017 December 5, 2017
WRITTEN SUBMISSIONS FILED ON: January 11, 2018 February 10, 2018 February 26, 2018
reasons for judgment
Laliberté, j.
INTRODUCTION
[1] The accused, Yousef Romaizan, is charged with two counts of dangerous driving causing death contrary to s.249 (4) of the Criminal Code.
[2] The allegations are that on August 13th, 2015 at the Township of North Dundas, he operated a motor vehicle on Belmeade Road in a manner that was dangerous to the public and thereby caused death to Marc Sabourin and Shea Laughlin.
[3] The Crown argues that the evidence establishes beyond a reasonable doubt, that the accused drove a vehicle in a manner which is objectively dangerous and that he did so with the required mental fault defined as objective mens rea.
[4] Defence submits that the Crown has not established the required blameworthy mental state of mind for dangerous driving beyond a reasonable doubt. The question of causation is also challenged by the accused. Accordingly, he should be found not guilty of both counts.
[5] Properly articulated the issue for the Court is whether the Crown has established each of the constituent elements of the offence of dangerous driving causing death beyond a reasonable doubt.
THE EVIDENCE
[6] On August 16th, 2017, I, as the trial Judge, was asked to attend the location where the collision giving rise to these charges took place.
[7] The accused and both counsel were present. He was arraigned and the view was recorded.
[8] An agreed statement of the facts was filed as Exhibit #1 in the course of this view of the scene. These facts are as follows:
− Highway 31 ( Bank Street ) runs north/south from Ottawa to Morrisburg
− Marionville Road runs east/west and, at Bank Street, turns into Belmeade Road, which also runs east/west. In other words, the same east/west road is named Marionville Road East of Bank Street and Belmeade Road West of Bank Street
− It is a two lane paved county road, which, in August 2015, did not have any dividing lines or fog lines. It also did not have a warning sign near the hill in August 2015
− On Thursday, August 13th, 2015 at approximately 8:00 p.m., Shea Laughlin was driving her red 2014 Yamaha FZ-09 motorcycle. She had a passenger, Marc Sabourin
− Near civic address 7949, Belmeade Road crests over a hill
− Mr. Romaizan was driving his grey 2007 Honda Odyssey minivan westbound on Belmeade Road east of the hill. Ms. Laughlin was driving eastbound on Belmeade Road west of the hill
− At about 8:06 p.m. on Belmeade Road near civic number 7949 the motorcycle driven by Ms. Laughlin collided with the minivan driven by Mr. Romaizan
− At the time, the minivan was perpendicular across the road with its hood pointing south
− The van came to a final rest on the grassy shoulder south of Belmeade Road with its hood resting against a utility pole
[9] The additional following admissions were made during the trial:
− The accused was operating the minivan at the time of the collision
− The collision caused the death of Marc Sabourin and Shea Laughlin
− At the time of the collision, both vehicles were in proper working order:
• Nothing mechanical
• The tires were proper
− The admission in regards to the absence of markings and a sign was repeated; the warning sign was placed east of the hill and visible to the westbound traffic
[10] The Crown called the following witnesses:
− Lesley Hill
− Stuart Marshall
− Constable Steve Roy
− Sergeant Mark Wright
[11] The defence did not call any evidence.
LESLEY HILL
[12] Lesley Hill resides on Marionville Road and is familiar with Belmeade Road. She describes it as not being very busy. The speed limit is 80km/h and there were no markings on this road in August 2015.
[13] She describes there being a “big hill” and a “small hill” on Belmeade Road. You can’t see anything over the “big hill” on either the east or west side. You can only see over to the other side once on top of the “big hill”.
[14] Her evidence is that she tries to keep as far to the right as she can while travelling over this hill because at times people were not staying on their side of the road.
[15] The witness recalls having travelled on Belmeade Road on August 13th, 2015. She was driving westbound towards Osgoode where she was playing baseball. She had left her home at about 7:55 p.m. It was still light out.
[16] After having gone over the “big hill’ for maybe half a kilometer, she checked in her mirrors and noted a motorcycle travelling in the same westerly direction. Her speed was between 80 and 90 km/hour. She thought the motorcycle was going slightly faster than she was.
[17] A few seconds later, she again checked in her mirrors and saw that the motorcycle was now travelling easterly in the opposite direction. She notes that it had come down the “big hill” and the “small hill” and turned around. She last saw it when it was going up the “big hill”.
[18] She is unable to describe the colour of the motorcycle. It seemed like a “street bike” meaning it wasn’t a “dirt bike” or “touring Harley Davidson” type bike. She doesn’t know how many people were riding on it.
[19] She testified not having seen the motorcycle do anything unusual.
[20] She found out about the collision on Belmeade Road while playing baseball in Osgoode. She contacted the police the following morning.
[21] In cross-examination, she confirms not having seen the maneuver through which the motorcycle changed direction. She assumed it had made a U-turn. She agrees that this wasn’t done at an intersection.
[22] She recalls giving a statement to the police on August 14th, 2015 at 8:00 a.m. over the telephone. While she did tell the officer that the motorcycle had made a U-turn, she explains that she assumed it did because it had changed direction.
[23] She also told the officer that she thought the motorcycle would “blow by her”. She states that this was a poor choice of words on her part and that she meant it would go around her. She figured it would eventually pass her on the road.
[24] Finally, she agrees with the suggestion that she reduces her speed below the speed limit while coming over the “big hill”.
STUART MARSHALL
[25] Stuart Marshall is a police officer with Ottawa Police who resides on a separate road located at around 300 meters of the scene.
[26] He was off duty on August 13th, 2015 and was told by his wife that she had heard a loud noise and people yelling. He drove his truck to the scene to find out what was going on.
[27] Once at the scene on Belmeade Road, he saw a vehicle in a ditch and a motorcycle on the road. There were debris on the road.
[28] He testifies being familiar with this road and describes the hill as a “blind hill” since you can’t see oncoming vehicles on either side. You can only see once on the crest of this hill.
[29] He drove by the debris on the north side and positioned his truck facing west in the eastbound lane just over the crest so that vehicles could see it. It was still light out.
[30] The emergency personnel had not yet arrived and a small group of people had assembled.
[31] He observed a person with the bicycle on the road. He grabbed a first aid kit and approached the motorcycle. The person was lying on her side with one leg under the motorcycle. She wasn’t breathing and had no pulse. She still had a helmet on.
[32] He became aware of a second person located in the passenger side window of the van with his upper body inside the van and the lower part hanging outside the said window. The van was in the south ditch facing south.
[33] The witness approached the van and yelled. He notes that there was blood. He grabbed the person’s wrist and there was no pulse. The person still had a helmet on.
[34] He explains that he then spoke to a male who confirmed that he had been in the van. He noted another male who appeared to be in shock. He was just staring and saying nothing. He appeared to be in a catatonic state.
[35] He confirms that he didn’t move anything at the scene other than plastic that wraps around the engine exhaust portion of the motorcycle.
[36] The first emergency responders arrived at the scene some 15 to 20 minutes later.
[37] There were pizza boxes and pizza flyers inside the van.
[38] In cross- examination, he agrees that you can’t see from either side of the hill and that he is conscious to control his speed when coming over the hill in either direction. He explains having come across slow moving farm equipment on a couple of occasions.
CONSTABLE STEVE ROY
[39] Constable Steve Roy has been a member of the Ontario Provincial Police since 2007. His initial involvement in this matter was as a Technical Collision Investigator (TCI) who is tasked with attending scenes of motor vehicle collisions involving serious injuries or death in order to assist in investigations by identifying and preserving evidence.
[40] Constable Roy explains that he attended the scene on Belmeade Road on August 13th, 2015 in his capacity as a TCI. He notes that Constable Frizell who is a TCI was also present. Furthermore, Constable Luc Poirier attended as a collision Reconstructionist. A Reconstructionist is an expert who provides an opinion based on the physical evidence as to the circumstances leading to motor vehicle collisions. However, Constable Poirier has since become unavailable so that Constable Roy has assumed the role of Reconstructionist in this matter save for the physics and mathematical calculations of speed. He was asked to do so in May 2017.
[41] He indicated that he has been trained and qualified as a Reconstructionist by the OPP since October 2017. Thus, he can provide an expert analysis of the collision in this matter. His qualifications are set out in exhibit #2 and were not challenged by defence. He was accordingly qualified as an expert witness on consent.
[42] A number of exhibits were filed in the course of Constable Roy’s testimony :
Exhibit #3: power point presentation of photographs
Exhibit #4 : binder containing 2 reports authored by Constable Roy, photographs, diagrams of scene, notes prepared by other officers, article prepared by Dr. Jeffrey Muttart in regards to research on driver response
Exhibit #5: diagram of scene
Exhibit #6: a bill for pizza in the amount of $44.50 for civic address 4602 Marionville which is attached to a flyer type menu from the Main Bar & Gill
[43] Constable Roy testified that on August 13th, 2015, he was dispatched and arrived at the scene on Belmeade Road at 10:57 p.m.
[44] He describes Blemeade Road as a paved two lane undivided highway oriented in an east-west direction. The width of the paved roadway is 6.7 meters, thus 3.45 meters per lane. The speed limit is 80km/h. There were no painted markings (dividing center line nor fog line). It is bordered by packed gravel shoulders and grass-covered drainage ditches which are not deep.
[45] He notes that Belmeade Road crests near the entrance of civic address 7949 and that this number is affixed to a utility pole. There are 2 separate private driveways accessible to the public in the area where the road crests, namely civic addresses # 7940 and # 7949.
[46] He explains that the crest in the road is such that it creates a line sight obstruction between the eastbound and westbound motorists approaching this crest. The grade prevents motorists in both directions from seeing oncoming traffic until one reaches close to the top of the crest. This is shown in the various photographs filed in this trial. It was also observed by the Court during the August 16th, 2017 view of the scene. There is a 14 meter stretch or plateau on the top of the crest which is relatively flat. The private driveway for civic address #7949 is located on this plateau.
[47] Once at the scene, Constable Roy determined that a Honda minivan and a Yamaha motorcycle were involved in the collision. He notes that the said vehicles and the 2 deceaseds who were travelling on the motorcycle had not been moved from their final resting position.
[48] The motorcycle had come to rest on its left side on the south side of the roadway (eastbound lane) near the centre.
[49] The minivan had come to rest on the grass covered south drainage ditch, with its front end facing south and resting against a pole.
[50] The deceased male motorcycle rider was resting on his back, below the minivan’s passenger side sliding door, with his feet facing east and his head facing west.
[51] The deceased female motorcycle rider was resting on her back, directly east of the motorcycle with her head facing south and feet facing north.
[52] The following is a summary of the significant observations made by Constable Roy in support of his opinion as to the circumstances which led to the collision:
− The damage to the minivan
• Damage to the right side
• The rear sliding door, rocker-panel below sliding door and roof panel above the sliding door were laterally bent inward
• Buckling of metal induced by impact
• Spattered fluid on door
• Both windows shattered
• Damage is narrower at the bottom and becomes broader
• Small paint red chips transfer on surface
− The fresh scuffing on the outside wall of the rear driver side tire of the minivan; small scuffing on a tire indicates that the wheel was not turning at impact; turning would cause more of the side wall of the tire to be exposed; limited scuffing is indicative of a vehicle being stopped or moving very slowly at the time of impact
− The presence of blood inside the van
− The motorcycle had sustained frontal collision-related damage:
• The front wheel assembly and forks were crushed rearward into the frame and front radiator
• The front rim was broken and crushed inward
• The front tire was off the rim, punctured and lacerated
• A portion of the right brake disk was bent at a 90°angle
• The handlebars had detached from the front forks
• The front fender light assembly and instrument cluster were smashed
• Vehicle fluid was spattered onto the front end
• Occupant contact had bent both sides of the gas tank inward
• The front of the gas tank was shifted downward and the rear of the gas tank was lifted upward
• The shifted gas tank had pushed the front of the riders’ seat upward
− The motorcycle tires revealed the following:
• Light spackling on the centre portion of the front tire; faint sparkling on front tire can indicate heavy breaking
• Heavy spackling on centre portion of tread, skid patch with tire grinding on trailing end of skid patch on the rear tire; this is indicative of a locked and sliding tire
• The final resting position of the vehicles and deceaseds
• There are no marks on the east side of the crest roadway; there is no evidence of pre-collision evasive maneuver or braking on the east side
− No collision evidence on either side of the crest
− The location of the spattered vehicle parts and fluid on the roadway
− The 24.7 meter skid mark in the eastbound portion of the roadway:
• A skid mark is a tire mark created by the tire not rotating and sliding across the roadway; the wheel blocks by the application of the brakes; forward momentum continues to carry vehicle forward; this causes tire to slide; the mark is caused by heat to pavement
• Skid mark travelled in an easterly direction and was relatively parallel to the roadway; there was no weaving or curving ; it was 2 meters from the southern edge of the roadway
• The motorcycle was located at the end of this skid mark
− A tire scrub mark left on the roadway
• A scrub mark is a mark caused by impact and change of direction
• It was located at 2.6 meters of the south pavement edge
• It began gradually, was predominantly oriented towards the east and curved south slightly
• The centre of the scrub mark had dark and narrow lines running parallel with it; as it progressed east, it became lighter and narrower; it ended approximately 1.4 meters after it began, where it changed into a perpendicular rib and groove pattern oriented south towards the minivan’s final rest position
− The minivan’s passenger-side plastic rocker panel cover and a trail of vehicle fluid were between the scrub mark and the south pavement edge
− There was a pair of parallel tire prints which began on the south gravel shoulder and ended at the minivan’s rear wheels
[53] Constable Roy’s collision analysis is articulated at pages 5 to 9 of his second report filed as part of Exhibit #4. He states the following:
“The motorcycle was eastbound, being operated by the female rider and male passenger, in the eastbound portion of Belmeade Road. The motorcycle was climbing the west side of a hill which crested near civic address 7949. Upon cresting the grade and gaining visibility to the east side of the hill, the operator of the motorcycle was faced with an immediate threat created by the minivan being in her path of travel.
As a result, the operator of the motorcycle applied the brakes and eventually locked the rear wheel. The locked and sliding rear tire created a 24.7 meter skid mark in the eastbound portion of Belmeade Road. It also created a skid patch and heavy spackling on the rear tire’s tread.
The distance between both vehicles at the point of possible perception was approximately 76 meters. The operator of the motorcycle travelled approximately 51.3 meters beyond this point before locking the rear wheel.
With its rear wheel locked and sliding, the motorcycle’s front end struck the minivan’s right sliding door within the eastbound portion of Belmeade Road. The male passenger slid over the female operator and struck the minivan’s sliding door near the roof rail. The male passenger’s body then smashed through the minivan’s sliding door window, entered the passenger compartment and began bleeding heavily inside the minivan. Meanwhile, the female operator engaged the motorcycle’s fuel tank and handlebars before striking the minivan’s right sliding door. She and the motorcycle then fell to the ground and came to rest within the area of impact.
Collision damage was confined to the minivan’s right sliding door, with no evidence of the motorcycle and its riders having deflected towards the minivan’s rear quarter panel or front door. This was consistent with the motorcycle and its riders having struck the minivan perpendicularly. The minivan was therefore perpendicular to the roadway and blocking the eastbound portion of Belmeade Road when struck by the motorcycle.
With the impact having occurred behind the minivan’s centre of mass, the motorcycle and its riders rotated the minivan’s rear end towards the east. This caused the minivan’s left rear tire to slide perpendicularly across the roadway, creating a 1.4 meter tire scrub mark on the pavement. This created a skid patch on the tire’s outboard sidewall. The skid patch was confined to an area less than a quarter of the tire’s circumference and was comprised of perpendicular scratches. This, combined with parallel striations within the tire scrub mark, was consistent with a lack of wheel rotation as the minivan’s rear end was moved laterally from impact. This in turn was consistent with the minivan having been stationary when struck by the motorcycle.
Using the length of the scrub mark and the centre of the front axle as the pivot point, I determined that the minivan rotated approximately 25 degrees clockwise after being struck by the motorcycle.
Post collision, the minivan rolled down the south embankment, creating a pair of parallel tire prints on the south shoulder’s soft gravel surface. The minivan came to rest in the south ditch after having struck hydro pole with its front end.
Based on the scene and vehicle evidence, it is my opinion that the minivan intruded into the motorcycle’s path during a low speed turning maneuver rather than an emergency avoidance maneuver. There was a lack of evidence to support a higher speed emergency avoidance maneuver. Evidence of such would include pre-impact side-slipping tire marks and the minivan coming to rest at a shallower angle in relation to the roadway’s orientation rather than perpendicular.
[54] The Court did not refer to the portion of Constable Roy’s report which speaks to the issue of speed and driver response since he had clearly differed to Sergeant Wright on these issues during his testimony.
[55] The officer also testified that there is no civic address 4602 Marionville Road. There is a 4602 Belmeade Road address which is located on an ATV trail some 15km west of the collision scene.
[56] The following points are raised by counsel in cross-examination:
➢ On June 16th, 2017, Constable Roy testified in the context of discoveries and stated that he could not provide evidence as to the direction in which the minivan was travelling prior to the impact. Nor could he state where the minivan was one second prior to impact.
It is noted that the officer had told Crown counsel in examination-in-chief that the minivan was stationary or near stationary at impact and that its position on the roadway was as a result of a “low speed turning maneuver”.
The officer explains that this was a “lapse in concentration” on his part and confirms that there is no physical evidence to support a finding that the minivan was travelling westbound and engaged in a slow turning maneuver prior to impact.
➢ The officer agrees with the suggestion that the operator of the motorcycle could have seen the minivan at a distance of 38 meters from the crest of the hill.
➢ Constable Roy is questioned in regards to whether or not the physical evidence supports the possibility that the front brakes had been applied by the operator of the motorcycle.
Specifically, he is cross-examined on his June 16th, 2017 discovery evidence when he stated that “the front brake may have been slightly used and may or not been used at all”. At trial, he had testified that the “faint spackling” on the front tire may indicate “heavy front brake application”.
The suggestion is made to the officer that he failed to mention the possibility of front brake application and that this is a significant consideration in that:
• The bike could have tipped over and come to a stop before impact
• Means a higher initial velocity of the motorcycle at the point of possible perception
➢ He confirms that he was made aware that the deceased operator of the motorcycle was not an experienced driver. He believes she had a novice license.
He agrees with the suggestion that driver experience can be a relevant factor in determining the circumstances leading to a collision. He also agrees that this was not considered in his analysis in this matter.
➢ He confirms knowing that Constable Luc Poirier attended the scene of the collision and re-enacted the events leading to the collision.
While the officer does not recall looking at the videos of this re-enactment, he knows that an experienced police officer drove a Harley Davidson at 90 Km/hr and was able to stop prior to the point of impact by applying the brakes at the point of possible perception.
(The Court notes that these videos were filed as Exhibit # 12 in this trial on consent)
Counsel challenges the officer’s impartiality as an expert witness by reason of his failure to raise the question of a driver’s experience in his reports and testimony. The officer’s response is that he believes this to be more relevant to Constable Poirier and Sergeant Wright’s evidence
➢ The question of the application of the front brake on the motorcycle was revisited. Constable Roy agrees that the following would support the application of the front brake:
• The fact that the skid mark was long and straight
• The change in tone from dark to light within the skid mark; he learnt this by hearing Sgt. Wright talk outside the courtroom after his examination-in-chief
• The fact that the shocks were clean by reason of the compression caused by the front braking
➢ There was no evidence gathered prior to the westerly point of the skid mark. Constable Roy agrees with the following suggestions:
• There had to be some amount of aggressive braking before the skid mark starts to form
• Part of the initial skid mark would have faded so that velocity cannot be quantified prior to the point where the rear wheel locked and caused the skid marks
• Using the beginning of the 24.7 meter skid mark as the measure for speed would serve to slightly underestimate the speed of the motorcycle upon the very first initial brake application
➢ The officer agrees that painted lines on a roadway provide a motorist with visual cues in terms of vertical and horizontal alignment of the roadway. A driver going westbound on Belmeade Road would have a better opportunity to appreciate that he was approaching the crest of a hill if there had been roadway markings.
➢ There is no evidence to suggest aggressive driving by the accused prior to the collision such as excessive speed, weaving through traffic, loss of control or disregarding traffic signals
SERGEANT MARK WRIGHT
[57] Sergeant Mark Wright is a member of the Ontario Provincial Police and has held the rank of Traffic Sergeant as Provincial Coordinator for the OPP’s Technical Collision and Reconstruction program since 2001. His curriculum vitae was filed as Exhibit #7.
[58] Save for the issue of human perception and reaction, defence did not oppose Sgt. Wright being qualified as an expert and provide opinion evidence as a collision reconstructionist. For the reasons stated on record, the Court is of the view that the notion of human perception and reaction is an integral part of this subject matter and as such relevant. While Sgt Wright is unable to explain the physiological chemical reaction in the human body, his training and experience are such that he is able to provide insight on how “perception and reaction” is a factor in a collision. He was therefore allowed to testify accordingly.
[59] Exhibit #8 was filed, by the Crown on consent, as part of Sgt Wright’s testimony. Tab 2 of this Exhibit is a statement and notes prepared by the witness.
[60] Sgt. Wright explains that part of his duties involve the review and audit of Technical Collision Investigating and Collision Reconstruct Reports. He notes having reviewed the reports prepared by Constables Steve Roy and Luc Poirier in the present matter in February and May 2016.
[61] In May 2017, he was advised that Constable Poirier would not be in a position to testify in this case and therefore, he agreed to review the material and testify at trial.
[62] Tab 1 of Exhibit #8 is Constable Luc Poirier’s Collision Reconstruction Supplementary Report wherein he sets out his collision analysis. Defence confirmed that this report was being filed on consent and was to be considered by the Court as part of the expert evidentiary record.
[63] Sgt. Wright stated that he had reviewed Constable Poirier’s report and that, for the most part, he agreed with his conclusions. These conclusions are set out at page 9 of Constable Poirier’s said report and are as follows:
“1. The motorcycle, with rider and passenger, was travelling eastbound in the eastbound portion of Belmeade Road.
As it crested the hill, the motorcycle was travelling between 77 to 91 km/h.
At impact with the van, the motorcycle was travelling at approximately 65 km/h.
The motorcycle was in its proper lane of travel throughout the entire visible approach to impact.
At impact, the van was stopped across the eastbound portion of Belmeade Road.
At impact, the angle between the van’s longitudinal axis and Belmeade road was approximately 93 degrees.
The van’s position across the roadway at impact was inconsistent with an avoidance manoeuvre to an approaching vehicle.
If the motorcycle was travelling at the posted speed limit of 80 km/h it still would have struck the van.
In my opinion, the collision was the result of the van’s position in the eastbound portion of Belmeade Road.
The van’s position in relation to the crest of the hill made it impossible for the driver of the motorcycle to react in time and avoid the collision.
As the van travelled west on Belmeade Road, the motorcycle could not have been visible to the driver of the van as the motorcycle was on the blind side of the hill.”
[64] Sgt. Wright testified along the same lines as Constable Steve Roy. He explained that the following three components allow for a finding as to the area of impact, the position of the vehicles at impact and what happened after the fact:
i) The skid mark created by the motorcycle
➢ The significance of the 24.7 meters of skid mark in regards to the speed at which the motorcycle was travelling at the start of this skid mark
➢ If only the rear brake was applied, the speed was 77km/h
➢ If both front and rear brakes were applied sufficient to lock the rear wheel and have the maximum front brake without locking the front tire, the speed would be approximately 91km/h
➢ The presence of a skid patch on the rear tire indicates that it caused the skid mark; there is no skid patch on the front tire
➢ The locking of the front tire would have likely caused the motorcycle to lose stability and go down quickly
➢ The fact that the skid mark is fairly straight supports rear tire braking
➢ There is some evidence to suggest that the front tire brake was applied:
• The presence of gaps in the skid mark
• The compression of the front forks resulting in same being cleaned; this is also consistent with frontal impact
• The presence of spackling on the front tire
ii) The damage to the side sliding door of the van:
➢ He notes that the damage is consistent with the van being hit by the motorcycle which is reinforced by the following:
• The skid mark caused by the motorcycle is straight and ends abruptly
• The scratch marks on the exhaust of the motorcycle are consistent with it coming to an abrupt stop
• The location of the damage on the van assists in identifying the speed of the motorcycle at the time of impact; the measure is how much force was required from the motorcycle to cause the van to start to rotate about its centre of mass
• Constable Luc Poirier noted the following at page 6 of his report:
“The motorcycle speed determination involved the analysis of the interaction between the motorcycle and the van. The motorcycle struck the right side of the van, in front of the right rear wheel. This created an eccentric force (not centrally located), which caused the van to rotate 25 degrees clockwise… as the van rotated its left rear tire was under load and created a scrub mark on the road surface. I calculated the speed of the motorcycle at impact to have been approximately 65 km/h based on the rotation of the van.”
iii) The tire scrub mark created by the van’s driver’s side rear tire
➢ As already noted, this tire scrub assists in determining the motorcycle’s speed at impact
➢ The long/straight striations show that the tire is not rotating while being pushed sideways; a rotating tire being pushed sideways while rotating would have a more curved striation pattern within the tire mark
➢ This is consistent with the van being stopped when struck by the motorcycle
➢ The scrub mark on the sidewall of the rear driver’s side tire would have been created by the van sliding on the road
[65] Sergeant Wright is questioned in regards to the 75 meters “point of possible perception”. He explains that this is a bench mark which must be looked at with caution. He notes that it does not reflect reality in terms of “perception and reaction” since the person is told what to look for and knows what to look for.
[66] He states that the point of possible perception, which was determined by reference to the height of the motorcycle and the van, was fairly short in this case because of the crest of the hill.
[67] The witness confirmed having reviewed videos made by Constable Poirier at the scene with another officer operating a motorcycle to ascertain whether it could stop prior to impact. These videos were filed on consent as Exhibit #12
[68] He indicates not having relied on those videos in his analysis and that he didn’t so for the following reasons:
− These tests were done using a Harley Davidson motorcycle equipped with ABS braking
− The operator was told to drive across the crest and apply the brakes as soon as the hazard is seen; this impacts on “perception and reaction”; it removes the unknown elements that a driver would be exposed to in reality
[69] The Court confirms having looked at the videos. It shows that the rider was able to stop prior to the location of a police vehicle located in the area where the van was located at the time of the collision. He was able to do so at a speed of more than 90km/h.
[70] In commenting on Constable Poirier’s conclusions, which he adopts for the most part, Sergeant Wright provides the following evidence:
➢ While he can’t say where the motorcycle was prior to the start of the said mark and at the point of possible perception, his assumption is that it was likely in the same travel path as when the skid was left because it would need to be upright and balanced when the rear wheel was locked
➢ There is no evidence to support the suggestion that the van had performed “avoidance maneuvers ” prior to impact such as tire marks on the road
➢ The skid mark left by the motorcycle indicates that it was reacting to a hazard
➢ There was limited sight lines, limited ability or time and distance to identify the hazard and react accordingly
➢ The rider of the motorcycle took the appropriate action that was available; the normal course of action when faced with such an immediate hazard is to try and stop
[71] The following points are raised by defence counsel during cross-examination:
➢ Other than the positioning of the van at impact, there is no evidence to establish the direction in which the van was travelling prior to its position at impact
➢ The witness agrees with the suggestion that the van could possibly have been travelling eastbound at a slow speed from the gravel and grass portion into the road, but is of the view that this is not a reasonable scenario based on the physical evidence; he states that:
“… I wouldn’t expect it to be in that same position if it had been turning around from eastbound”
➢ There is no evidence to establish how long the van had been stopped in the eastbound lane prior to impact
➢ There is no indication that the van was moving at impact
➢ He cannot say where the motorcycle was prior to the start of the 24.7 meters skid mark
➢ Theoretically, at a speed of 91km/h, the motorcycle could have been somewhat imbalanced some 21 meters west of the start of the skid mark and brought back to being upright and balanced at the start of the skid marks
➢ There is no way to know where the motorcycle was at the 76 meters point of possible perception
➢ At a speed of 91km/h, a motorcycle can come to a complete stop in 47 meters; at a speed of 80km/h, it can come to a complete stop in 36 meters
➢ The ability to stop is predicated on human perception and reaction; there is processing time needed for the driver to become aware of a hazard and react accordingly; it is not realistic to expect the application of brakes at the point of possible perception
➢ He agrees that visibility was not a factor for perception since it was daylight
➢ There is evidence to suggest that the front brake of the motorcycle was applied; the range of speed was from 77 to 91 km/h
➢ It is possible that part of the skid mark faded quickly as suggested by Constable Roy so that the 24.7 meters distance could possibly underestimate the actual distance travelled by the motorcycle with the rear tire being locked; thus, the speed could be slightly higher than 91km/h
➢ There is probably enough room on Belmeade Road to perform a full U-turn without the necessity of going through a three point turn
➢ He indicates that he would probably not issue a speeding ticket to a motorcycle driver travelling at 91km/h over the crest heading eastbound on Belmeade Road
➢ He would potentially ticket the driver of a van who came up at the scene, turns into the grass, turns around and drives away; he would ticket this person under the Highway Traffic Act for making a U-turn within 150 meters of the crest of a hill; he would not however charge the person under the Criminal Code with dangerous driving
POSITION OF THE PARTIES
DEFENCE
[72] The essence of defence’s position is that the Crown has not proven that the accused had the required objective mens rea beyond a reasonable doubt.
[73] The primary submission is that the evidence does not establish that a reasonable person in the circumstances of the accused would have foreseen the risks and taken steps to avoid same. Specifically, it is argued that there is a reasonable doubt as to whether the accused knew there was a reduced line of sight created by the hill and that oncoming vehicles could not have stopped in response to his maneuver.
[74] The following points are raised by defence in support of this submission:
➢ There is a reasonable inference, as raised by the Crown, that the accused was not familiar with this stretch of road; he therefore did not know that there was a hill on this roadway
➢ At the relevant time, the roadway was not clearly marked, there was no road sign warning of the approaching hill and there were no fog or center lines; the lack of such visual cues impacts on a driver’s ability to see and react to changes in the alignment of the roadway; it is noted that the provincial authorities have since posted a warning sign and painted lines; this supports the notion that the roadway was poorly marked at the time of the collision.
➢ The fact that the hill is not steep but slopes at a gentle grade of less than 5% makes it such that it would not have been clearly visible to the accused;
➢ The following facts, which are required to establish guilt, are not supported by the evidence:
• Knowledge that he was on a hill
• Knowledge of how close he was to the top of the hill
• Knowledge of how close an approaching vehicle could get without being seen
➢ Reference is made to the fact that the deceased had just driven over the hill seconds prior to the collision, and yet, drove in a manner that had no regard for what may be on the other side of the hill beyond what can be seen; this is said to provide direct evidence allowing for an inference that even drivers who were familiar with this hill either fail to appreciate the reduced line of sight or fail to appreciate that the line of sight is reduced enough that a vehicle, at a certain speed, is unable to stop to avoid an object in its path.
[75] The accused’s secondary argument is that, even assuming that he failed to foresee the risk and act accordingly, is conduct was not a marked departure from the standard of care expected of a reasonable person in his situation. His conduct amounts to a momentary lapse and not criminally liable dangerousness.
[76] The point is made that the jurisprudence is clear that criminal liability requires evidence of speed, distance and time. The absence of these elements is more suggestive of the civil rather that the criminal end of the negligence continuum.
[77] The evidence reveals the following:
➢ There was no speed involved; the speed in the maneuver was either zero km/hr or very slow
➢ The total distance of the maneuver was approximately 2 meters
➢ The driving was over a very short period of time
➢ The rest of the driving was otherwise reasonable and prudent
[78] These points are said to support the submission that the accused’s conduct amounted to a momentary lapse.
[79] Furthermore, it is argued that the accused did not display a series of conscious thoughts and inner monologues while performing the maneuver as suggested by the Crown. The process of engaging in a U-Turn is not a complicated process as again suggested by the Crown. Driving is largely reflexive and automatic.
[80] Defence also raises the issue of causation and maintains that the accused did not cause the death of the drivers of the motorcycle. It is argued that the cause is the fact that the driver of the motorcycle chose to crest the hill, seconds after coming over it before, at such an excessive speed that no matter what was in their path, they would not have been able to stop. It is impossible for the motorcycle to stop within the 78 meters available. This means that a child on a bicycle or a slow moving tractor would have been struck.
[81] Reference is made to the expert Sgt. Wright’s evidence that his opinion would change on the issue of causation if the motorcycle had struck the back of a slow moving tractor. His view is that the motorcycle would then have caused the collision. This is said to demonstrate the flaw in the Crown’s case. It is also suggested that this expert witness was more intent on being an advocate for the Crown when he opined that he would not have charged the driver of a motorcycle driving at 90 km/hr over the hill.
[82] Finally in regards to Sgt. Wright’s testimony, it is submitted that the single most important piece of evidence in the entire trial was his evidence that he would not have charged the accused with dangerous driving had he observed him maneuver his vehicle as alleged by Crown but without any consequence. Therefore, according to the Crown’s expert, the only thing making the driving dangerous is the consequence of the driving.
[83] It is also argued that the fact that s.143 of the Highway Traffic Act makes it an offence to conduct a U-Turn within 150 meters of the crest of a hill is an indication by the legislator that not all U-Turns within 150 meters of a hill constitutes dangerous driving.
CROWN
[84] The Crown submits that the accused ought to be found guilty of the two counts of dangerous driving causing death.
[85] It is argued that the evidence establishes that he operated a motor vehicle in a manner that was objectively dangerous to the public and that he failed to foresee the risk and take steps to avoid it. His failure to do so amounts to a marked departure from the standard of care expected of a reasonable person in the accused’s circumstances.
[86] The Court is asked to draw the following inferences to explain why and how the accused’s minivan came to block the eastbound lane as disclosed by the evidence:
− The accused owns a local restaurant in Metcalfe
− He was operating his minivan to make a food delivery at an address of 4602 Marionville Road, which evidence has shown does not exist
− He was looking for this address and upon seeing the sign for civic address 7949, he believed himself to be going in the wrong direction; he then decided to turn his vehicle around and return towards Bank Street to find the correct address
− From this, it can be inferred that the accused was not familiar with the area or the roadway as he would have turned into Marionville Road from Bank Street and not Belmeade Road
− He also would not have had his error flagged by the appearance of the first address sign had he been familiar with the area
[87] The objective dangerousness for the public of the manner the accused operated his motor vehicle is said to be grounded on the following considerations:
− By slowing, turning and stopping in a place he could not be seen
− He engaged in a series of maneuvers to turn his vehicle where he clearly could not be seen by oncoming traffic
− The minivan was a large and heavy passenger vehicle which the accused maneuvered to turn on a narrow roadway with gravel shoulders
− At various points of his maneuver, he was blocking both lanes of traffic; he was blocking the entirety of the oncoming east bound lane, sideways at a 90 degree angle at the time of impact
− Any motor vehicle coming over the crest of the hill at any point in time in that sequence of events would have found the accused’s minivan blocking some or all of both lanes
− The danger created by him was to the public as a whole and was unavoidable by any vehicle coming over the blind hill in an easterly direction
[88] Crown counsel argues that the evidence establishes the required mens rea to prove dangerous driving. She relies on the following:
− This is not a situation where the accused had to avoid a situation; he himself created the situation in the face of glaringly obvious warning signs of imminent and serious danger
− The fact that he was not familiar with the area is significant;
• He would not have known the level of traffic
• The roadway was not marked with dividing lines or fog lines
• The marked speed limit
• The width, surface quality and grade of the road
• The type of shoulders
• The presence of the houses as a sign of possible traffic coming in and out of driveways
• The presence of a blind hill which makes it such that it is impossible to see oncoming traffic; this becomes obvious as a driver approaches the hill
• The circumstances are such that the accused would have had the time to read the sign, process its relevance, realize his directional error, asses his surroundings, choose a course of action and execute the multi-task course of action – all the while under the crest of a clearly obvious blind hill which rendered him invisible to oncoming east bound traffic
• He deliberately placed his vehicle in a location where it was obvious that it could not be seen from the other side of the hill
• His maneuver was such that it cannot be held to be a momentary lapse of attention or a single error in judgment
• Rather than continue up the hill and safely turn into the driveway at 7949 Belmeade, he chose an action that was inherently dangerous to others
• Any reasonable driver would have foreseen the risks and would not have engaged in such maneuvers in that location; his failure to foresee and take steps to avoid the risks was a marked departure from the standard of care expected of a reasonable person in the accused’s circumstances
[89] The Crown argues that the issue of causation revolves around whether the accused performed the requisite actus reus and mens rea for the offence of dangerous driving. The issue is not one of apportioning degrees of fault as in a civil context. Legal causation is a question of law and speaks to whether the accused should be held criminally responsible for the factual results of his conduct.
THE LAW
[90] The following principles apply to the offence of dangerous driving causing death:
− The Court must differentiate between the actus reus and mens rea components of the offence.
− The actus reus addresses the prohibited conduct.
− The mens rea addresses the fault element.
− The Court must not conflate the actus reus and mens rea components of the offence and conclude that because the vehicle has been operated in a dangerous manner the offence has been made out.
− The offence is not defined by the common law standard for civil negligence.
− “Unlike civil negligence, which is concerned with the apportionment of loss, penal negligence is aimed at punishing blameworthy conduct. Fundamental principles of criminal justice require that the law on penal negligence concerns itself not only with conduct that deviates from the norm, which establishes the actus reus of the offence but with the offender’s mental state”.
− “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”.
− R. v. Beatty 2008 SCC 5, [2008] 1 S.C.R. 49
− R. v. Roy 2012 SCC 26, [2012] 2 S.C.R. 60
− R. v. Reynolds 2013 ONCA 433, [2013] O.J. no 2933
ACTUS REUS
− The Court must be satisfied beyond a reasonable doubt that, viewed objectively, the accused was driving in a manner 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 at the time or might reasonably be expected to be at that place.
− The conduct must be measured as against the wording of s.249.
− There must be a meaningful inquiry into the manner of driving, not the consequence of the driving including tragic death.
− A manner of driving can rightly be qualified as dangerous when it endangers the public. It is the risk of damage or injury created by the manner of driving that is relevant, not the consequences of a subsequent accident. The consequences may assist in assessing the risk involved, but it does not answer the question whether or not the vehicle was operated in a manner dangerous to the public.
− R. v. Beatty 2008 SCC 5, [2008] 1 S.C.R. 49
− R. v. Roy 2012 SCC 26, [2012] 2 S.C.R. 60
− R. v. Anderson 1990 CanLII 128 (SCC), [1990] 1 S.C.R. 265
− R. v. Romano 2017 ONCA 837, [2017] O.J. no 5703
− R. v. Hamilton [2014] O.J. no 1716
− R. v. Bennett [2014] O.J. no 6526
MENS REA
− When considering the mens rea element, the Court must apply a “modified objective standard”.
− Objective mens rea is based on the premise that a reasonable person in the accused’s position would have been aware of the risks arising from the conduct and would not have undertaken the activity or would have taken steps to avoid it.
− The Court then considers whether the accused’s failure to do so constitutes a marked departure from the standard of a reasonable person in all of the circumstances such that an inference of fault from the manner of driving is appropriate.
− Fault lies in the absence of the requisite mental state of care. The degree of departure of the standard of reasonable care is determinative.
− A single and momentary error in judgement or momentary lapses of attention in the absence of prior bad driving such as speeding and/or aggressive driving will not generally rise to the level of a marked departure. The Court must consider the driving leading up to the collision as to whether it was normal and prudent.
− The degree of departure from the norm must be examined by the manner of driving and not the circumstances of the specific collision. It is wrong to focus on the foreseeability and avoidability of the specific collision and the victim’s level of blameworthiness.
− The point at which conduct passes beyond negligence to criminally dangerous driving can be difficult to discern
− R. v. Beatty 2008 SCC 5, [2008] 1 S.C.R. 49
− R. v. Roy 2012 SCC 26, [2012] 2 S.C.R. 60
− R. v. Romano 2017 ONCA 837, [2017] O.J. no 5703
− R. v. Burger [2017] O.J. no 586
− R. v. Dennington [2017] A.J. no 35
− R. v. Bennett [2014] O.J. no 6526
− R. v. Hodgson [2011] O.J. no 365
− R. v. Baker 2013 ONCA 746, [2013] O.J. no 5687
− R. v. Laverdure [2016] O.J. no 7033
− R. v. Sharp 1984 CanLII 3487 (ON CA), [1984] O.J. no 46
− R. v. Hamilton [2014] O.J. 1716
CAUSATION
− The principles governing the concept of causation were summarized as follows by the Ontario Court of Appeal in R. v. Kippax 2011 ONCA 766, [2011] O.J. no 5494:
“21. To determine whether a person can be held responsible for causing a particular result , in this case death or bodily harm, we must determine whether the person caused that result not only in fact but also in law…”
“24. To prove factual causation… The Crown need only prove that an accused’s conduct was a significant contributing cause of the death or injuries or, said another way, that the accused’s conduct was “at least a contributing cause… outside the de minimis range…”
“26. Legal causation, on the other hand, has to do with whether an accused should be held responsible in law for a prohibited consequence of his or conduct, for example, death or injury… In the analysis of legal causation in negligence- based offences, like dangerous driving reasonable foreseeability harm is a relevant consideration…”
“27. Conduct that is inherently dangerous and carries with it a reasonably foreseeable risk of immediate and substantial harm satisfies the standard required for legal causation…”
Fundamental principles of our criminal law
The presumption of innocence provides that an accused person is presumed innocent and so remains if and until the Crown proves his or her guilt.
The burden of proving guilt rests solely on the prosecution. There is no burden of proof placed on an accused person.
The Crown’s burden is to prove each of the essential elements of the offence beyond a reasonable doubt.
I have instructed myself in regards to the concept of reasonable doubt in accordance with the Supreme Court of Canada’s instructions in R. v. Lifchus 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320 :
i) It is fundamental to the presumption of innocence.
ii) It is not a doubt which is far-fetched or frivolous.
iii) It is not based on sympathy or prejudice. It is based on reason and common sense. It is a doubt that logically arises from the evidence or the lack of evidence
iv) It is not enough for the Court to believe that an accused is likely or probably guilty.
v) However, the Crown is not required to prove guilt on the standard of absolute certainty.
vi) The Court’s task is to consider all of the evidence and decide whether it is sure the accused committed the offence. An acquittal must follow if at the end, based on all of the evidence, or the lack of evidence, it is not sure.
DISCUSSION
[91] All agree that this is a very sad and tragic case. Two lives were lost on August 13th, 2015. I have no doubt that family and friends of Marc Sabourin and Shea Laughlin have been and continue to be devastated by these tragic events.
[92] While I am mindful of these tragic consequences, as a judge, I must remain focus on applying the law to the facts as presented to me. Justice Crownwell of the Supreme Court of Canada stated the following in R. v. Roy:
“1. Dangerous driving causing death is a serious criminal offence punishable by up to 14 years in jail. Like all criminal offences, it consists of two components: prohibited conduct-operating a motor vehicle in a dangerous manner resulting in death- and a required degree of fault- a marked departure from the standard of care that a reasonable person would observe in all the circumstances. The fault component is critical, as it ensures that criminal punishment is only imposed on those deserving the stigma of a criminal conviction. While a mere departure from the standard of care justifies imposing civil liability, only a marked departure justifies the fault requirement for this serious criminal offence.
- Defining and applying this fault element is important, but also challenging, given the inherently dangerous nature of driving. Even simple carelessness may result in tragic consequences which may tempt judges and juries to unduly extend the reach of the criminal law to those responsible, yet, as the Court puts it in R. v. Beatty… “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.” Giving careful attention to the fault element of the offense is essential if we are to avoid making criminals out of the merely careless.”
[93] So that the question to be decided by the Court is whether the Crown has established the 2 essential elements identified by Justice Crownwell beyond a reasonable doubt.
[94] Dealing firstly with the actus reus or manner of driving, which again is separate and apart from the question of the mens rea or fault element, the Court finds that the Crown has established that the accused’s driving was objectively dangerous in that it created a significant risk to others. This finding is not based on the consequences, namely that 2 people died.
[95] Measured against the terms set out in s.249 of the Criminal Code, the Court is satisfied beyond a reasonable doubt that the accused drove in a manner that was dangerous to the public having regard to all the circumstances, which includes the nature, the condition and use of Belmeade Road and the amount of traffic at the time or the traffic that might be reasonably expected to have been on this highway at the relevant time.
[96] Viewed objectively, the accused’s manner of driving created a risk and danger to others using the road at the time.
[97] This finding of objective dangerousness in the manner of driving is based on all of the circumstances including the following:
− The admitted facts reveal that the accused was operating a motor vehicle in a west bound direction on Belmeade Road
− It was also admitted and established by the evidence that at the time of the collision, the accused’s vehicle was perpendicular across the road pointing south
− For whatever reason, the accused’s vehicle was positioned across the east bound lane and thereby blocking the path of vehicles travelling easterly
− It was so positioned on top of a crest where the view of oncoming vehicles is obstructed in both directions
− Belmeade Road allows for relatively high speed, namely 80 km per hour
− While not heavily travelled, the reasonable expectation is that others were using this highway at the relevant time; in fact, the evidence shows that others were travelling in both directions at around 8:00 p.m.
− In such a setting, the objective dangerousness of the accused’s manner of driving rests in the positioning of a motor vehicle in such a way that it blocked the opposite lane of travel and provided very little, if any, opportunity for others travelling east bound to observe and react in a timely manner, so as to avoid this obstacle; using the words of Justice Charron in R. v. Beatty at paragraph 51, “… failure to confine his vehicle to his own lane of traffic was dangerous to other users of the highway…”
[98] The final question for the Court and perhaps the most challenging, is whether the Crown has established the requisite objective mean rea beyond a reasonable doubt. Does the evidence prove that the accused is morally blameworthy and as such, deserving of punishment?
[99] As already discussed, the cases have set out a clear distinction between the actus reus or manner of driving and the mens rea or moral culpability. A review of the jurisprudence reveals that in a good number of cases, and more notably decisions of the Supreme Court of Canada in R. v. Beatty and R. v. Roy, Court have found the evidence to have proven the actus reus beyond a reasonable doubt but left with a reasonable doubt in regards to the mens rea.
[100] I wish to refer to the comments of Justice Layh of the Saskatchewan Court of Queen’s Bench in R. v. Evans [2016] S.J. no 328. In that case the accused was travelling on a two lane highway in foggy conditions where visibility was described as poor. He abruptly pulled out of his lane to pass a vehicle he was following and was met head on by a Freightliner travelling in the opposite direction. Two of his passengers were killed and another was injured.
[101] Justice Layh found that the Crown had proven the actus reus. He noted that pulling out to pass the vehicle with such limited visibility directly into the oncoming vehicle was objectively dangerous. However, he was left with a reasonable doubt as to the mens rea.
[102] At paragraph 31 of his decision, he states the following:
“31. I have analysed and studied Justice Crownwell’s statements and find I agree with the assessment of those statements as provided by Professor Janine Benedet of the Faculty of Law at the University of British Columbia. She has written about the application of Roy as follows:
“Roy is a short decision notable for providing a clear and unanimous statement of the law applicable to the offence of dangerous driving, which has provided fodder for debate and disagreement in past cases. The Supreme Court makes clear that the actus reus of dangerous driving is not the same as the mens rea, and that the mens rea is not easy to prove. The actus reus of the offence is whether the driving is objectively dangerous in the circumstances. Pulling out into oncoming traffic, in a motorhome, in fog and snow, without enough time for oncoming traffic to stop, is objectively dangerous.
The temptation is to conclude that such driving must also be marked departure from the actions of the reasonable person and thus that the mens reas is also proven. Justice Cronwell clearly rejects this and defines the marked departure more broadly by looking at the accused’s conduct leading up to the accident. It appears that if the whole trajectory of the driving is more or less normal, a momentary decision to do something dangerous, even if it results in tragic consequences, will be viewed as an error in judgment that will not attract criminal liability…”
[103] Having considered all of the circumstances in this matter and the relevant principles, I am left with a reasonable doubt in regards to the proof of the objective mens rea. This doubt relates to whether a reasonable person in the accused’s circumstances would have been aware of the risk associated to his manner of driving. Perhaps more importantly, even assuming that the circumstances were such that there was a reasonable foreseeability of risk which should have been detected by the accused, I am left with a reasonable doubt on the issue of whether the accused’s failure was a marked departure from what is expected of a reasonable prudent driver in such circumstances.
[104] Dealing first with the issue of reasonable foreseeability of risk by a reasonable person in the accused’s circumstances, the Court’s reasonable doubt is based on the cumulative effect of the following considerations:
- Both the Crown and defence agree that the evidence allows for an inference that the accused was not familiar with Belmeade Road. I agree with this proposition and find it to be a reasonable inference which can be drawn from the evidence, namely:
− The presence of a bill for food delivery to civic address 4602 Marionville Road attached to a flyer type menu from a restaurant
− Constable Roy’s evidence that there is no such civic address
− Marionville Road is located east of Bank Street; the accused was travelling on a road on the west side of Bank Street
− The maneuver which led to his vehicle being perpendicular is consistent with an intent to turn so as to travel back towards Bank Street in an easterly direction; the inference is that he would not have travelled in the wrong direction had he been familiar with the area
Crown counsel argues that the accused’s lack of familiarity with Belmeade Road should have heightened his level of care and prudence. This is certainly a sound argument. However, lack of familiarity with the road and prior knowledge of risk associated thereto, is part of the accused’s circumstances which define what the reasonable person would have been exposed to in the same setting.
The expectation is that a reasonable person who is familiar with a given risk will foresee same and act accordingly. The converse to this is also true since the absence of knowledge of a risk impacts on the reasonable person’s ability to foresee and act accordingly.
- I also find as a fact that back in August 2015, there was very little in terms of warning on Belmeade Road for westbound traffic of the inability to observe vehicles travelling in the opposite eastbound direction by reason of a blind hill.
The evidence reveals that there were no painted lines nor any warning signs.
As already noted, I, as the trial judge, attended the scene for a view at Counsel’s request on August 16th, 2017. I have carefully looked at the photographs filed as Exhibits and showing what would have been observed by the accused once he turned unto Belmeade Road and travelling westerly towards the crest. I find that there is very little in terms of topography or physical features which could reasonably serve as cues to forewarn a reasonable person of the imminent danger associated to oncoming traffic which cannot be detected by reason of a blind hill.
- The Court was advised that following the tragic events of August 13th, 2015, the authorities painted lines on the pavement of Belmeade Road and installed a warning sign on the east side of the crest in order to warn westbound traffic. This is seen as significant evidence and supportive of the notion that the circumstances as they existed in August 2015 were inadequate.
The adding of the said warning sign is seen as circumstantial evidence allowing for a reasonable inference that it was required in order to properly forewarn westbound traffic as the existing circumstances did not provide sufficient warning.
The same logic applies to the painting of lines on the pavement. As testified to by the expert witness Constable Stephane Roy, such lines provide drivers with guidance as to the topography of a road. The reasonable inference from this evidence is that the absence of such lines impacts on a driver’s ability to appreciate a road’s configuration.
- There is no dispute that Belmeade Road is located in a rural area and that the traffic is light. Witness Lesley Hill describes it as not being very busy. The inference from the evidence is that such was the case at the time of the incident and that the accused would not have encountered other vehicles prior to his maneuver.
This is found to be a relevant factor in assessing the presence or absence of objective indicators of risk that a reasonable and prudent driver would have considered in those circumstances.
[105] As already indicated, I find that the evidence does not establish a marked departure from what would have been expected from a reasonable person in the accused’s position. To be clear, this does not mean that the accused was not negligent or did not depart from reasonable expectations.
[106] I accept the evidence of both Constable Roy and Sergeant Wright as to the circumstances which led to the collision. This expert evidence coupled with the agreed statement of facts establish that the accused was travelling westbound on Belmeade Road and the reasonable inference is that he decided to travel in the opposite direction. In order to do so, he maneuvered his vehicle in such a way that it became perpendicular across the eastbound lane. I accept Constable Roy’s conclusion that “… the minivan intruded into the motorcycle’s path during a low speed turning maneuver rather than an emergency avoidance maneuver…” It should also be clear that I place no blame on Ms. Laughlin for what happened.
[107] In essence, the Court’s finding is that while the accused was negligent, his departure from reasonable expectations was not to the extent or degree required for a finding of guilt under criminal law principles articulated by the Supreme Court of Canada in the cases reviewed in this judgment.
[108] While, as suggested by the Supreme Court, Judge’s may be tempted to do so, the Court cannot rely on the tragic consequences of this accident as a basis for moral culpability in criminal proceedings.
[109] As already discussed, the principles are such that conduct that occurs in a brief time fame in the course of driving which is otherwise normal, prudent and proper in all respect, is more suggestive of the civil rather that the criminal end of the negligence continuum.
[110] The evidence in the present case does not reveal that the accused’s driving leading up to his turning maneuver was other than normal and prudent. In the absence of such evidence, the Court cannot infer otherwise.
[111] The Court also finds that the reasonable inference is that the accused’s conduct did not amount to a series of acts requiring much thought, time and manoeuvring to perform. It is found to be conduct occurring in a relatively brief time frame and the unfortunate result of the accused’s momentary lack of judgment when he decided to maneuver his vehicle across the eastbound lane when it was not safe to do so in order to travel in the opposite direction.
[112] In the final analysis, the Court is of the view that the evidence establishes a momentary decision by the accused to do something dangerous which resulted in very tragic consequences. Such momentary lapse in judgement does not attract criminal liability.
CONCLUSION
[113] For the reasons set out in this decision, the accused is found not guilty of both counts.
Justice Ronald M. Laliberté
Released: April 13th, 2018
COURT FILE NO.: CR 17-43
DATE: 20180413
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
Yousef Romaizan
REASONS FOR JUDGMENT
Justice Ronald M. Laliberté
Released: April 13th, 2018