COURT FILE NO.: 21319/17
DATE: 2018-02-09
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
JASVIR SINGH
Mr. R. Parsons, for the Crown
Mr. A. Gold, for the Accused
HEARD at Timmins: November 20, 21, and 22, 2017
Reasons for Judgment
A.D. kurkE j.
Overview
[1] On January 11, 2016, two tractor trailers collided on Hwy 11 near Val Gagne, Ontario. One was northbound, the other heading south. The collision occurred in the northbound lane. Gary Messenger, the driver of the northbound truck, died from his injuries in the collision. Jasvir Singh, the driver of the southbound truck, is charged with dangerous driving causing Messenger’s death.
[2] The central issue on this trial is whether Mr. Singh was driving dangerously on the road that day, and caused a collision with Mr. Messenger’s truck, or whether he was driving appropriately, and either was in a collision that could not have been avoided or foreseen, or lost control through no criminal fault of his own and went into the northbound lane where his truck was struck by the Messenger truck.
Facts
The Crown’s case
Agreed Statement of Fact
[3] An Agreed Statement of Fact was filed as Exhibit 2 on the trial. It reads as follows:
On January 11th 2016, at approximately 9:34 a.m. a 2009 Freightliner being operated by Jasvir Singh and hauling a box trailer was southbound on Highway #11 near Val Gagne, Ontario. Travelling northbound was a 2010 Peterbilt with a tanker trailer being operated by Gary Messenger. The two tractor trailers collided. Jasvir Singh suffered minor injuries and was transported to the Matheson Hospital while Mr. Messenger died at the scene. At the time of the collision, Mr. Singh’s vehicle was travelling between 80 – 90 kilometers per hour. [It is] agreed [that] it was not a head-on collision.
Cause of Death
[4] A Final Autopsy Report was entered as Tab 1 of Exhibit 1 on the trial.
[5] An autopsy was performed on Gary Messenger at 1 p.m. on January 12, 2016 at the Northeastern Regional Forensic Pathology Unit, at Health Sciences North, in Sudbury. Noted, among other things, were multiple blunt-force type injuries consistent with a collision with another truck. The Cause of Death was listed as “Multiple Injuries”.
Cst. Chris Brown
[6] On consent, Cst. Chris Brown was qualified to offer opinion evidence in the area of motor vehicle accident reconstruction. His “Reconstruction Report”, which also contains his Curriculum Vitae, was entered on consent as Exhibit 3. Cst. Brown has extensive training in collision reconstruction, has trained others in the area, and on seven occasions between 2012 and 2015 was qualified to offer opinion evidence in criminal proceedings.
[7] Cst. Brown was working in Sudbury on January 11, 2016, when he was called out as a reconstructionist to the scene of the accident. He arrived to the scene at 3:44 p.m. That day, Cst. Brown made a video of his walk-through of the scene. On January 19, 2016, he prepared another video, made while driving the highway about a kilometer above and below the scene of the accident, in order to demonstrate normal traffic patterns and sight lines, with the accident debris cleared from the area.
[8] At the location of the accident, the highway is a single lane in each direction, northbound and southbound, with shoulders. On the day of the collision, the road was snow and ice covered. About a kilometer away from the scene of the collision in each direction, the highway has a short rise. On this stretch of road, the highway has a posted speed limit of 90 kms/hr.
[9] Reconstruction shows that the first contact between the trucks was at the front passenger tire of the Freightliner (the southbound or SB truck) and the front passenger corner of the tanker tractor (the northbound or NB truck). Damage continued up the passenger side of the SB truck, causing significant damage into the drive axles, which were shifted backwards. The bumper and the frame rail were significantly shifted backwards from the passenger front corner of the NB truck. The SB tractor, once that truck was struck, continued into the East side ditch off the highway, and onto its side. Its trailer was extensively damaged and remained on the road and shoulder, with its rear tri-axle assembly off and on the southbound shoulder, and part of its roof on the southbound road and shoulder. Photos of the SB truck show the name “H and R Transport” on the cab doors in red lettering.
[10] Cst. Brown calculated the place of impact on the road from the position of the NB truck, and determined that the point of contact was in the northbound lane. He could not identify the point of impact on the road itself, as the road was snow and ice covered. At the place of the collision, the road, had it been clear, was marked with a dashed yellow line; passing would have been allowed there. A driver familiar with the road could know that the dashed yellow lines lay beneath the snow.
[11] Examination of the trucks indicates that there were no mechanical malfunctions in either truck that led to the accident.
[12] The trucks were each equipped with electronic control modules (ECM), which record driving data in various circumstances, including the situation of a “hard brake”, involving deceleration of 11.3 kms/hr per second or greater, although the brakes need not be engaged during such an event. At such an event, if there remains a supply of electricity to the ECM, it will record data from 59 seconds before the hard brake event until 15 seconds after the hard brake event. ECM data is appended to Exhibit 3.
[13] Given the extensive damage to the tractor of the NB truck, power was cut off to its ECM, which was therefore unable to record data from around the time of impact. Accordingly, its speed at the time of collision cannot be known. It was known that this truck’s “speed limiter” or “road speed governor” was set at a maximum speed of 65 mph or 105 kms/hr. Its ECM did record an earlier hard brake event, but also an acceleration afterwards, which rules out the collision as the source of the sudden deceleration that was recorded there.
[14] However, relevant data was recovered from the ECM of the SB truck. That ECM records that at the moment of “hard brake”, at trip odometer distance 317903.1 kms, the SB truck was travelling at 70.8 kms/hr. One second earlier, it had been travelling at 93.3 kms/hr. That 93.3 kms/hr appears higher than the agreed statement speed because of variability relating to tire wear and tire changes over time. As I understand it, the ECM overstated speed because it did not account for tire wear. The vehicle brakes were applied only at the time of the hard brake, for four seconds, and it took approximately 6 seconds from the point of hard brake for the SB tractor to come to a stop. Cst. Brown’s opinion was that the collision was the hard brake event.
[15] In cross-examination Cst. Brown agreed that, when the ECM data shows “0” for “engine load”, as it did at the moment of hard brake, the data could be consistent with a skid, in which the driver is pressing on the brakes, but not the throttle. In the ECM data relating to the hard brake incident, the ECM records show “0” for engine load at 29 or 30 seconds before the hard brake event for three seconds, at -8 to -7 seconds, and -1 to 0 (hard brake). Cst. Brown also testified that “0” engine load could also simply mean that the driver had stopped depressing the throttle.
Lise Breton
[16] On January 11, 2016, Lise Breton (“Breton”) was in a car southbound from Cochrane to visit her son and daughter-in-law to help with their newborn. Her husband Richard was driving. The couple had set out from Mattice the day before in their gold Dodge Caravan. They had to stop over in Cochrane on January 10, as the road was closed beyond because of heavy snow.
[17] When the road opened on January 11 in the morning, Highway 11 was snow packed. It was not snowing, but there was a lot of blowing snow coming up from the ground on occasion. Visibility was “okay” at a safe distance. Conditions were sometimes worse, and sometimes better. Richard was taking no chances. He was not passing any cars, and not going too fast.
[18] As they drove south, they were passed by a small truck with a U-Haul trailer, and Richard slowed to allow the vehicle back in the southbound lane. That pass went “okay”. But then a transport passed them, causing lots of “flurries” of snow. Richard really slowed down to let that truck get back into the southbound lane.
[19] After the pass, Breton lost sight of the transport, and could no longer see the truck with the U-Haul. At some point after, Richard jammed on his brakes, and veered to the right. They stopped by the side of the road. Breton could see a transport axle on one side of the road, and cargo scattered all over the highway. The transport was lying on its left side.
[20] Richard got out and went to help while Breton called 911. Richard at one point came back with the driver of the truck pulling the U-Haul, who was a paramedic. One of the transports was leaking fuel.
Andre Plourde
[21] Andre Plourde (“Andre”) was moving from Kapuskasing to Ottawa. He and his girlfriend Marie Blais, and his son Pascal Plourde (“Pascal”) had set out on January 10, but like the Bretons, spent the night in Cochrane because the road was closed by the snowstorm.
[22] They picked up their trip southbound on Highway 11 at 8:30 or 8:45 a.m., when the road reopened. Andre was driving a 26 foot U-Haul truck. In front of him was Marie in a red sedan. At the front of their group was Pascal, in his Ford truck pulling a U-Haul trailer.
[23] Andre is an experienced northern driver, who also has practice driving “treeline truckers” into the forest. He has driven highways in the region in every season, and in the prior five years had driven 640 kms a day, five days a week.
[24] When the road opened, the group gassed up, and headed south on Highway 11. The road surface was hard and icy. Visibility was good, but there was drifting snow. Andre limited his speed to 50 miles per hour, to be safe.
[25] The transport that was in the accident came up behind Andre as they went up a little hill on the highway. Andre realized that the vehicle wanted to pass him. He wondered how the truck, in that place, felt that it could pass his group’s vehicles, as well as a minivan that was in front of him. When the truck passed him, Andre really slowed down, to allow the truck room to get back into the southbound lane in front of him. It did so, and at that point, Marie was in front of the transport, the minivan was in front of her, and Pascal was in front of the minivan. Pascal had safely passed the minivan at some point earlier.
[26] Then the transport passed Marie and the minivan. Andre was concerned about that pass, thinking that it was impossible for the truck to pass both Marie and the minivan safely, so he kept a safe distance. When the transport got to the front of the minivan, it cut sharply in, and Andre saw that there was a yellow transport coming northbound. Andre thought that the pass was very dangerous, as it required the yellow transport to move out of the way. Some of the yellow truck’s wheels were off the pavement. This occurred some 5 or 10 minutes before Andre came upon the accident scene, and stuck in Andre’s mind because it seemed unsafe.
[27] After the pass, Andre could see the transport that had passed advancing in front of the minivan, and Andre became concerned for his son, who was further up ahead. The transport seemed to him to be “rushing”.
[28] Eventually, Andre noticed that things seemed to be slowing down. 45 minutes out of Cochrane, Andre came on the scene of an accident. A southbound tractor trailer had hit a northbound tanker. Marie and the minivan were stopped on the side of the road not far from the accident.
[29] In general, I accept Andre Plourde’s evidence about the events he described. He had no reason to colour his testimony one way or the other, and his concern for his son and girlfriend make him a valuable observer about situations that could affect their safety.
Pascal Plourde
[30] Pascal Plourde (“Pascal”) is a paramedic, and drives a lot. He drives an ambulance for his work in Ottawa, for half of his 12 hour shifts. His personal vehicle is a Ford F150 truck. He estimated that he drives 30,000 kms a year in his truck, and at least that in the ambulance.
[31] He recalled leaving Cochrane at about 8:30 a.m. on January 11, 2016. He was pulling a U-Haul trailer. Marie was behind him in a four-door sedan. Andre was driving the U-Haul truck.
[32] A lot of people were leaving Cochrane at the same time; there were more transports than usual on Highway 11, because everyone had stopped in Cochrane the night before.
[33] The snow of the day before had stopped. The weather was cold, windy, and cloudy. There was compacted snow on the highway, which was very slippery.
[34] Given the road conditions, drivers had to be more cautious than usual. They should not speed. Pascal’s group were going between 80 and 90 kms/hr. For the hour that Pascal drove south from Cochrane, on regular occasions he observed whiteout conditions, where the wind would blow up loose snow. Whiteouts could last as long as four or five minutes.
[35] On Highway 11, Pascal was following a log truck that was going at Pascal’s speed. Pascal liked being behind the truck, because it gave him good visibility of the road ahead, and he felt safe. The log truck passed a vehicle, a minivan, safely and kept on going.
[36] Pascal described in some detail his own manner of passing what can only have been Breton’s van. He went up behind the van, and waited for a straight stretch where visibility ahead was one or two kilometers. This is important where there are occasional whiteouts from flurries, so that the passing driver can be sure there are no oncoming cars. Pascal could see the logging truck in the distance. He signalled left, and passed without issues. He then caught up to the logging truck, leaving some 100 feet of space between him and it.
[37] Then in his rear view mirror, Pascal observed a transport pass the van that he had passed. “The next thing” Pascal knew, the transport was behind him. It then started passing Pascal immediately as it came up to him, with no hesitation whatsoever before going into the northbound lane. Pascal was nervous. He noticed at that point that there was a whiteout of drifting snow, and he could not even see the log truck in front of him. There was no forward visibility, and the transport did not even appear to pause to check that the road was clear.
[38] Pascal, not usually a nervous driver, started swearing. He thought that he let his foot off the gas at the point that he saw the transport’s grill was beside his trailer, to let the transport pass, and because he could not see the log truck in front of him. He did not apply his brakes, as the road was too slippery. Pascal saw the front grill of the transport, when out of the snow ahead of him he observed two headlights approaching. The transport beside him then veered to the left. Pascal held onto the wheel, and feared for his life. He heard the sound of impact, but was able to keep driving. Behind him he saw a cloud of snow.
[39] From Pascal’s perspective, the southbound transport had obviously intended to pass him. When “he saw” the two headlights northbound, the southbound truck driver ditched to the left. The other driver, the driver of the northbound truck, had no time to do anything.
[40] The paramedic in Pascal took over. He turned his truck around, and grabbed his first aid kit. There was debris on the road. He could see the transport that had been following him in the northbound ditch lying on one side. The other truck, a tanker truck, was leaking fuel, which Pascal saw as a red-alert hazard.
[41] Pascal offered assistance to the driver in the ditch. He found him at the bottom of the cab, through an open window. He told the driver that they had to get out of there, given the risk of fire. After pulling the driver out of the cab, Pascal asked him what he thought he was doing passing him. The accused answered “he gave me the indicator.”
[42] The other tractor was destroyed. Its engine was gone, and it was all crammed into one piece. Pascal was shocked. However, he was relieved to discover that his own family, behind the accident, were safe. He wanted to get to the driver of the tanker, but he felt it unsafe because of the leaking fuel. He did not feel that he could get close enough.
Robert Kestner
[43] Robert Kestner (“Kestner”) has been driving truck since 1992, and has been driving for Home Hardware for 17 years. He estimated that he drives 150,000 kms./yr for work.
[44] On January 11, 2016, Kestner was driving a yellow Home Hardware truck northbound on Highway 11, hauling a 53-foot trailer. The road had only reopened at 8:30 that morning. He described the visibility as pretty good, but when one would meet other vehicles, there would be a “bit of dust”.
[45] Shortly before the turnoff to Iroquois Falls, he came upon a southbound truck in his lane. This was troubling to him, given the road conditions. Kestner said that he made no passes that day, given those conditions. As he put it, “I wouldn’t take the chance; why would you?” The road was snow covered and ploughed. There was snow flying up, and southbound trucks were kicking up snow. Kestner was driving around 80 kms/hr. Visibility was not bad until meeting other vehicles. Big puffs of snow could result in bad driving conditions.
[46] Kestner saw a truck with an “H and R” logo, with a 53 foot white trailer, the length of his own, and a darker tractor. There was an East Indian man with a turban driving it. The truck pulled from the southbound into his northbound lane, and then got back into the southbound lane at the last second. Kestner was startled. Given the icy roads, he did not expect someone to be out passing. He felt that his options to avoid this truck were to take the ditch or ride the shoulder. He hugged the right shoulder, staying as tight to the right shoulder as he could. This would have been at about 9:25 or 9:30 a.m.
[47] Kestner said that the truck was in a line of trucks. There could have been other vehicles in the southbound line of vehicles, but he only noticed the trucks.
[48] Kestner was shocked and “ticked off”. He “called out” the other driver for his actions, but got no response.
[49] In the main I accept Kestner’s evidence, which offered a clear exposition of a situation that confronted him during one work day, and common sense views about how those driving truck should ensure that they do their job safely. Kestner’s attention, however, was drawn to the truck with which he was confronted, and generally to other trucks that he encounters on the road and their drivers, so his detail about automobile traffic is less exact.
Daniel Rousseau
[50] Daniel Rousseau (“Rousseau”) now lives in Oshawa. In January 2016, he was living in Iroquois Falls for work. He did a lot of driving for work, estimating 1,000 to 1,500 kms/week on highway and in the bush.
[51] At about 9:00 a.m. on January 11, 2016, Rousseau noticed that Highway 11, the road he used to get to work, had reopened. He was heading southbound. It was cloudy and cold, with high winds. The highway was snow-covered, and there was snow dust from the traffic. Normally visibility was good, unless there was traffic in front of him. Visibility was poor in treed areas, but in clear areas, the wind swept the snow away. Rousseau had been doing about 90-95 kms/hr. He did not pass anybody.
[52] Just before Val Gagne, there was a slight uphill and then a downhill. Rousseau caught up to a U-Haul cube van just before the crest of the hill that was kicking up snow dust, so he backed off. Rousseau was driving at about 80 kms/hr. The U-Haul and other vehicles were doing between 70 and 80 kms/hr, depending on visibility and blowing snow. Visibility was too poor to pass, because of the snow dust.
[53] A silver-backed tractor-trailer pulled out to pass the cube van. The tractor-trailer had to pull in quickly to pass an oncoming Home Hardware truck at the crest of the hill. The Home Hardware truck had to pull onto the shoulder to get out of the way. Afterwards, Rousseau could see that the driver of the Home Hardware truck was agitated, cursing and pumping his fists in the air. Rousseau was not passed by any transport after the Home Hardware truck.
[54] In Rousseau’s view, the silver-backed truck was driving aggressively, and Rousseau backed off, concerned about what might happen. In giving this testimony, Rousseau did not believe that his view of things was affected by the fact of the accident that happened afterwards, although police questioning unfortunately invited Rousseau to consider the later accident in describing the southbound truck’s manner of driving at this earlier point.
[55] Rousseau backed off again, as trees along the sides of the road resulted in more snow dust. Not long after, Rousseau saw the cube van brake and slow down. Rousseau saw debris in front of it. Rousseau pulled over and put on his flashers and donned his work jacket, and went to help. From his view of things, he believed that the driver of the northbound truck was dead already, and his tractor demolished. The other driver was in an “H and R” tractor.
[56] The distance between the Home Hardware incident and the point at which the U-Haul truck braked was 2 or 3 miles. Rousseau estimated the time between to have been 5 or 6 minutes.
[57] I was impressed by Rousseau’s evidence and the straightforward way in which he offered it. I accept that evidence, and do not believe that his manner of describing his observations was affected to any significant degree by the nature of police questioning.
The evidence of the accused
[58] Mr. Singh testified with the assistance of a Punjabi interpreter, Mr. Khan, who also assisted him with interpretation of the evidence of the witnesses for the Crown. While Mr. Singh did not require a constant interpretation, Mr. Khan served as a resource to ensure that Mr. Singh understood the evidence in the case, and made his evidence understood when he was testifying. Defence counsel’s words of praise for Mr. Khan at the conclusion of the proceeding were well-deserved.
[59] Mr. Singh is 30 years old, and lives in Winnipeg. He drives truck for a living. He was first licensed in India in 2005, and spent some time in Australia driving heavy trucks in the rental and delivery business. He has a clean driving record in India, Australia, and Canada. He was familiar with the tractor and the trailer that were involved in this accident. He had used the tractor for a year prior to the incident. He was used to driving around Canada for his job.
[60] Regarding the day in question, Mr. Singh was involved with a load that he had picked up in Calgary, and was en route to Toronto and Montreal. The day before, he had been in Winnipeg, and drove towards Cochrane, stopping somewhere in between. He had driven such trips many times before, and was used to bad weather conditions on Highway 11. He was driving extra cautiously, because of the weather. Mr. Singh got on Highway 11 at Cochrane, where he too had to wait because the road was closed. He denied being in a hurry to make up time because of the road closure.
[61] Mr. Singh had driven the highway where the accident happened many times before, in all seasons, and in similar conditions with the same tractor and similar trailers. He had passed vehicles on this stretch of the road. On this day, there was a lot of blowing snow. Mr. Singh was able to see much further than someone in a passenger car, because he was higher off the ground in his truck. Other than the whiteout at the time of the collision, however, Mr. Singh remembers no such driving conditions. If the weather had been bad, he would have slowed down.
[62] Mr. Singh testified that prior to the collision, he had passed vehicles without difficulty. According to Mr. Singh, he was in the northbound lane passing a southbound vehicle, a red sedan, when he passed a Home Hardware truck that he particularly remembered because it was stopped and standing on the shoulder on the northbound side of the road. Mr. Singh acknowledged that had the Home Hardware truck been moving, he would not have overtaken another vehicle.
[63] He had not had to cut in in front of anyone to get back into the southbound lane when he saw the Home Hardware truck; there was no vehicle close to him. When Mr. Singh got back into his southbound lane, a log truck overtook his vehicle and passed his truck, then a Ford truck pulling a U-Haul trailer, and a minivan all on the same pass.
[64] In-chief, Mr. Singh testified that the Ford truck then passed the minivan, and Mr. Singh passed the minivan also, simultaneously. He was at the posted speed, and not getting faster. The van had reduced its speed to let the vehicles pass. Moreover, in-chief Mr. Singh testified that he settled safely back into the southbound lane just behind the Ford truck. Once he was settled, “instantly”, or “at that moment”, a northbound truck passed by and it added “snow dust” in the air. This northbound truck was not the truck that hit his truck. Up until that point it had not been dangerous to pass. It was after Mr. Singh passed, once the log truck had passed, that conditions changed because of the blowing snow.
[65] Mr. Singh’s evidence about the timing of his passing of the van and his position in relation to the Ford truck, varied significantly and confusingly in cross-examination. He now stated that he passed the minivan once the Ford truck had passed the minivan. He believed that the Ford was ahead of him, and he did not remember passing it. He could not say how far behind the Ford truck he was. But he did not know if the Ford had overtaken another vehicle or not. He could not remember if he could see the Ford truck after the northbound truck passed, kicking up snow, but he nevertheless testified that he settled behind the Ford after making his pass.
[66] At that crucial instant, when Mr. Singh was back in the southbound lane, things happened quickly. Mr. Singh felt by his steering wheel that his truck was swerving to the right, at a moment when there was no visibility. Because of the stress of the situation, he immediately pulled on his steering wheel quite a bit to the left side, overcorrecting his direction, and his truck went into the ditch beside the northbound lane. He could remember doing nothing except pulling the wheel to the left. He had had no intention of passing the Ford truck, was not passing the Ford truck, and did not intend to be in the northbound lane. He only learned afterwards that another truck had hit his trailer.
[67] After the collision he was in shock. Still in his cab, he felt that he had a broken left leg and shoulder. Mr. Singh did not remember saying to anyone “he gave me the indicator”, in response to the question what he thought he was doing in attempting to pass. In examination-in-chief, Mr. Singh testified that he did not even know what the words meant, but he testified in cross-examination that an “indicator” is a signal in a vehicle.
Law
Burden of Proof
[68] Mr. Singh started this trial presumed to be innocent of the charge he was facing. The Crown has the burden of displacing that presumption with proof beyond a reasonable doubt that Mr. Singh committed the offence with which he is charged: R. v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320, at para. 27. As Laskin, J. (as he then was) held in R. v. Appleby, 1971 CanLII 4 (SCC), [1972] S.C.R. 303, at para. 33: “[T]he presumption of innocence gives an accused the initial benefit of a right of silence and the ultimate benefit … of any reasonable doubt”.
The test in W.(D.)
[69] In the circumstances of this case, Mr. Singh has provided a completely different version of operative events than was developed and advanced in the Crown’s case. Accordingly, in assessing the evidence, I have instructed myself in accordance with the direction of the Supreme Court of Canada in R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, in which the Court offered the following guidance on how to approach “credibility contests” (at paras. 27 and 28):
27 In a case where credibility is important, the trial judge must instruct the jury that the rule of reasonable doubt applies to that issue. The trial judge should instruct the jury that they need not firmly believe or disbelieve any witness or set of witnesses. Specifically, the trial judge is required to instruct the jury that they must acquit the accused in two situations. First, if they believe the accused. Second, if they do not believe the accused's evidence but still have a reasonable doubt as to his guilt after considering the accused's evidence in the context of the evidence as a whole. [references omitted]
28 … A trial judge might well instruct the jury on the question of credibility along these lines:
First, if you believe the evidence of the accused, obviously you must acquit.
Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.
Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.
[70] While it has been said that these three W.(D.) steps are not a “magic incantation”, following the analytic framework set out in that case ensures that the correct burden and standard of proof are applied: R. v S.(W.D.), 1994 CanLII 76 (SCC), [1994] S.C.J. No. 91, at para 24. As noted by Charron, J. in R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para 23:
In a case that turns on credibility … the trial judge must direct his or her mind to the decisive question of whether the accused's evidence, considered in the context of the evidence as a whole, raises a reasonable doubt as to his guilt. Put differently, the trial judge must consider whether the evidence as a whole establishes the accused's guilt beyond a reasonable doubt.
Dangerous Driving
[71] Mr. Singh is charged under s. 249(4) of the Criminal Code of Canada, which looks to s. 249(1) to define the misconduct alleged, but adds in the fact, not in dispute in this case, that the collision between the accused and Gary Messenger caused the death of the latter. Section 249(1)(a) of the Criminal Code reads as follows:
249(1) Every one commits an offence who operates
(a) a motor vehicle in a manner that is 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[.]
[72] As to what conduct and mental state are required for a conviction of dangerous driving, the Supreme Court of Canada offered an exposition in R. v. Hundal, 1993 CanLII 120 (SCC), [1993] 1 S.C.R. 867, at para. 43, that has been further discussed in later decisions, including the recent Ontario Court of Appeal decision in R. v. Romano, 2017 ONCA 837, [2017] O.J. No. 5703, at paras. 66-69. The Supreme Court of Canada has provided a synopsis at paragraph 28 of R. v. Roy, 2012 SCC 26, [2012] S.C.J. No. 26, summarizing R. v. Beatty, 2008 SCC 5, [2008] S.C.J. No. 5, regarding the actus reus and mens rea components of the offence of dangerous operation:
28 The actus reus of the offence is 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 was being operated and the amount of traffic that at the time was or might reasonably have been expected to be at that place (s. 249(1)(a) of the Criminal Code). The mens rea is that the degree of care exercised by the accused was a marked departure from the standard of care that a reasonable person would observe in the accused's circumstances (Beatty, at para. 43). The care exhibited by the accused is assessed against the standard of care expected of a reasonably prudent driver in the circumstances. The offence will only be made out if the care exhibited by the accused constitutes a marked departure from the norm. While the distinction between a mere departure from the standard of care, which would justify civil liability, and a marked departure justifying criminal punishment is a matter of degree, the lack of care must be serious enough to merit punishment (para. 48). [Emphasis in original]
[73] The court must bear in mind that although there may be civil consequences from the events that occurred on January 11, 2016, Jasvir Singh is charged with a criminal offence and a criminal standard must be applied, which includes the presumption of innocence and proof of the essential elements of the offence of dangerous driving beyond a reasonable doubt. The distinction between the civil and criminal tests is set out clearly in Beatty, where at paragraphs 35 and 36 the Supreme Court of Canada makes the following comments:
35 In a civil setting, it does not matter how far the driver fell short of the standard of reasonable care required by law. The extent of the driver’s liability depends not on the degree of negligence, but on the amount of damage done. Also, the mental state (or lack thereof) of the tortfeasor is immaterial, except in respect of punitive damages. In a criminal setting, the driver’s mental state does matter because the punishment of an innocent person is contrary to fundamental principles of criminal justice. The degree of negligence is the determinative question because criminal fault must be based on conduct that merits punishment.
36 For that reason, the objective test, as modified to suit the criminal setting, requires proof of a marked departure from the standard of care that a reasonable person would observe in all the circumstances. As stated earlier, it is only when there is a marked departure from the norm that objectively dangerous conduct demonstrates sufficient blameworthiness to support a finding of penal liability. With the marked departure, the act of dangerous driving is accompanied with the presence of sufficient mens rea and the offence is made out. The Court, however, added a second important qualification to the objective test – the allowance for exculpatory defences.
[74] Thus, the offence of dangerous driving applies a modified objective test that requires the Crown to establish a marked departure from the norm and the requisite mental state. Simple carelessness is not criminal, and not every deviation from the civil norm merits branding of the conduct as criminal: see Roy, at para. 37.
[75] The objective test measures the driving of the accused, and the risks involved in that manner of driving, against that of a reasonable prudent person in the circumstances in which the accused found him or herself: Beatty, at para. 40. The test is modified to give the accused the benefit of any reasonable doubt about whether a reasonable person would have appreciated the risk or could and would have done something to avoid creating the danger. Thus, even when the manner of driving viewed objectively will clearly be dangerous, the accused cannot be convicted if there remains a reasonable doubt about the reasonable person’s response. Examples include such situations as a driver suffering an unexpected medical condition or the unanticipated effect of a prescribed medication that deprives him or her of the ability to control the motor vehicle: Beatty, at para. 37.
[76] The Supreme Court in Roy, at para. 36, suggested that the trier of fact consider two questions concerning mens rea:
a. In light of all of the relevant evidence, would a reasonable person have foreseen the risk and taken steps to avoid it if possible? and
b. Was the accused's failure to foresee the risk and take steps to avoid it, if possible, a marked departure from the standard of care expected of a reasonable person in the accused's circumstances?
[77] One important consideration is that the dangerousness of the driving must not be concluded simply from the devastating consequences of the driving. In discussing the actus reus element of the offence of dangerous driving, Cromwell J. makes the following comments at paragraphs 34 and 35 of Roy:
34 In considering whether the actus reus has been established, the question is whether the driving, viewed objectively, was dangerous to the public in all of the circumstances. The focus of this inquiry must be on the risks created by the accused’s manner of driving, not the consequences, such as an accident in which he or she was involved. As Charron J. put it, at para. 46 of Beatty, “The court must not leap to its conclusion about the manner of driving based on the consequences. There must be a meaningful inquiry into the manner of driving” (emphasis in original). 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. In conducting this inquiry into the manner of driving, it must be borne in mind that driving is an inherently dangerous activity, but one that is both legal and of social value (Beatty, at paras. 31 and 34). Accidents caused by these inherent risks materializing should generally not result in criminal convictions.
35 To summarize, the focus of the analysis in relation to the actus reus of the offence is the manner of operation of the motor vehicle. The trier of fact must not simply leap from the consequences of the driving to a conclusion about dangerousness. There must be a meaningful inquiry into the manner of driving.
On this point, see now also Romano, at paras. 68-69.
[78] The court must keep these principles in mind when assessing the evidence received at the trial of Mr. Singh.
Analysis
The Home Hardware truck
[79] On the evidence of the accused, he was passing the red car when he came upon the Home Hardware truck standing on the northbound shoulder of the road, not moving. He acknowledged that, had he come upon the Home Hardware truck driving (northbound), he would not have passed the red car. And the accused denies having have had to cut in to the southbound lane when he saw the Home Hardware truck; there was no car around him when he re-entered the southbound lane.
[80] But the other evidence in the case has the Home Hardware truck driving northbound at the time Mr. Singh was passing other southbound vehicles, and Mr. Singh cutting back into the southbound lane close to southbound vehicles he had passed.
a. Robert Kestner was the driver of the Home Hardware truck. As another trucker who was alert to other truckers, he unmistakably identified the accused’s truck by its “H and R” logo and its turbaned East Indian driver. (The accused notably wore a turban during the course of these proceedings.) That truck forced him onto the shoulder to avoid a collision, and it had to cut back at the last second into the southbound lane. Kestner indicated no stopping of his vehicle on the shoulder at any point in his narrative.
b. Daniel Rousseau’s evidence corroborates the account of Kestner. The Home Hardware truck had to take evasive action when the southbound passing truck attempted a pass near the crest of a rise. Kestner mentioned no other run-ins with other trucks, and the reaction that Rousseau observed, in the context of Kestner’s comment that he “called out” the other driver, satisfies me that Kestner was the driver of the Home Hardware truck observed by Rousseau. Rousseau also noted that visibility was too poor to pass, because of the blowing snow.
c. Andre Plourde also saw the southbound truck passing at a rise in the road, and having to cut sharply back in to the southbound lanes, as the Home Hardware truck’s wheels were off the pavement to avoid impact with the passing truck. Breton, who was being passed, noted that her husband had to slow down sharply to accommodate the southbound truck’s sudden return into the southbound lane. The passing truck was close enough to Marie’s vehicle and the minivan to cause Andre concern about their safety.
[81] It is clear to me on all of the evidence in the case that the accused’s evidence is unreliable about the stopped Home Hardware truck, and I reject that account. Rather, the evidence satisfies me beyond a reasonable doubt that the accused passed the southbound cars at a rise in the road, where he was unable to observe the oncoming Home Hardware truck until the last instant. At that point he was forced to cut dangerously back into the southbound lane in front of a minivan, and compelled Kestner to divert his northbound Home Hardware truck to the shoulder to avoid a collision.
[82] Was this an unexpectedly hazardous situation or a momentary lapse in judgment?
[83] There was no accident at this point, but that was by the accused’s good luck rather than good management. Traffic on the road included passenger vehicles and trucks. Common sense dictates that a truck hauling a trailer of 53 feet will require more time to clear vehicles that it is passing than will a sedan or even a pickup truck pulling a small U-Haul trailer, in order to return safely into its own lane and out of the oncoming lane. Moreover, this was a particularly chancy manoeuvre given the weather and road conditions, with blowing snow, icy road surfaces, and slower moving passenger vehicles. Kestner, a trucker, was a disinterested witness in these proceedings, and I accept his evidence about what took place, including about the road conditions, and the reasonable way for a tractor-trailer driver to proceed on such a road in the circumstances. As Kestner observed, “I wouldn’t take the chance; why would you?”
[84] I find, beyond a reasonable doubt, that in light of all of the relevant evidence, a reasonable transport driver would have foreseen the risk of attempting a pass approaching the crest of a hill, and in road conditions and in weather such as in this case, and taken steps to avoid it if possible. As Mr. Kestner pointed out, all the accused had to do was not attempt to pass. The accused's failure to foresee the obvious risk he was taking and to take steps to avoid it by not passing, represented a marked departure from the standard of care expected of a reasonable person in the accused's circumstances.
[85] This was dangerous driving.
Events leading up to the collision with the Messenger truck
[86] I also have significant concerns about the accused’s evidence concerning what happened leading up to the collision with Mr. Messenger. I find that the accused’s memory of important events leading up to the collision is simply unreliable or incredible.
[87] I note in particular the very different accounts offered by the accused in-chief and in cross-examination concerning his passing of the minivan in relation to the same manoeuvre by the Ford truck driven by Pascal Plourde.
[88] In cross-examination, the accused testified that when the Ford truck completed its pass, the accused proceeded to pass the minivan. He testified that he settled back in the southbound lane behind the Ford truck, and immediately a northbound truck created whiteout conditions. The accused claimed that he did not know how far the Ford truck was ahead of him when he lost visibility. He said that he did not know if it had overtaken another vehicle. Indeed, when asked whether he would disagree that the Ford truck was a kilometer ahead of him, Mr. Singh stated that he could not remember.
[89] However, the accused had previously in-chief been careful to explain that he passed the minivan simultaneously as the Ford passed the minivan, and that “instantly”, or “at the same time”, once he was back in the southbound lane just behind the Ford truck, a northbound truck passed, kicking up snow dust that took away visibility, and he felt his truck veering right. On that evidence, how could the Ford be a kilometer ahead of him, and why did the accused not know where the Ford was? I find that Mr. Singh was internally quite inconsistent in answering these questions, and I reject his testimony about passing the minivan just after the Ford passed the minivan.
[90] The accused also claimed that, in the whiteout caused by a northbound truck, he overcorrected when he felt his truck pulling to the right, causing his truck to go directly into the ditch on the northbound side of the highway. On this scenario, I find that the accused’s truck could not have been seen by Pascal Plourde to advance in the northbound lane up beside Plourde before going into the ditch. The accused would simply have pulled left from the southbound lane, and gone straight into the ditch.
[91] But Pascal Plourde testified clearly and was closely cross-examined on this crucial point. He saw the southbound truck pass the minivan in his rear-view mirror, advance towards him, and then begin to pass him without pausing. Pascal maintained that he did not slow down until he was already being passed by the southbound truck that was advancing in the northbound lane, and that he slowed down to allow the transport to merge back into the southbound lane sooner and safely. I accept Pascal’s evidence on this point without hesitation. He testified quite rationally that this manoeuvre by the southbound truck caused him significant anxiety, and I have no doubt that he recounted his observations accurately, given the mental state he experienced that etched them into his memory.
[92] In addition, the accused implied in his testimony that the whiteout at the time of the collision was an exceptional circumstance which could not have been anticipated before he lost control of his truck. Every other witness on this trial testified to occasional whiteout conditions, caused by “drifting snow”, or “snow dust”, meaning a weather and driving situation frequent and dangerous on northern roads. I reject as incredible the idea that to that point only the accused, even in his elevated situation, was spared the treacherous driving conditions and immediate dangers that such whiteouts represent.
[93] Pascal’s evidence, which is quite clear about what happened at the point of the collision, and detailed, has the accused come up behind him, and in a single movement begin to pass him, without checking the clearance on the road ahead. Pascal did not testify to any instability or shimmying of the accused’s truck, or to any passing northbound truck. Pascal had time to curse out the truck driver who was passing him and to try to slow down safely by taking his foot off the gas without attempting to engage the brake. Pascal observed the passing truck advance next to him beside his trailer, and as the accused began to pass him and move alongside him, whiteout conditions deepened. It was only at the point that Pascal saw northbound headlights that the passing truck veered to the ditch.
[94] No one other than the accused mentioned the northbound truck that threw up snow as it passed. Nor was anyone else asked about it. I find it inconceivable that Pascal Plourde would not have noticed or mentioned this “phantom” northbound truck, as the Crown termed it, had such a truck actually passed by. I do not believe in, and indeed I reject the existence of this northbound truck.
[95] I find myself unable to accept the accused’s evidence at all about events leading up to the collision between his truck and the Messenger truck. That evidence is unreliable and incredible in significant ways, and I reject it. I am not left with a reasonable doubt by that evidence, either by itself, or in the context of any other evidence in the case. I say this without reference to the accused’s cryptic remark to Pascal Plourde, that “he gave me the indicator”. While I harbour suspicions about what this might mean, in the circumstances in which it was spoken I can take nothing from it.
[96] I completely accept the evidence of Pascal Plourde as credible and reliable. His evidence was closely tested in cross-examination, and apart from expressing some understandable irritation at the exercise, the force of his evidence remained undiminished. Even uncorroborated, I would accept the account offered by Pascal. I also unhesitatingly state that Pascal Plourde conducted himself with extraordinary professionalism in his conduct at the scene, in circumstances that would have rendered most people incapable of assisting those in the accident. Ottawa clearly has much to be proud of in its EMS personnel.
[97] Moreover, Pascal’s account also appears to be corroborated, in my view, by the data from the accused’s ECM. I accept that the absolute vehicle speed as recorded by the ECM can be inaccurate, depending on tire wear. I have no reason, however, to think that relative speed can be so affected. I accept the view of Cst. Brown, that the collision between the accused’s truck and the Messenger truck occurred at data point “0:00” in the “hard brake” data appended to Cst. Brown’s report, with a noted drop in speed of the accused’s truck of some 22.5 kms/hr, from 93.3 kms/hr to 70.8 kms/hr.
[98] It is significant, however, that from a point in time some seven seconds before collision until the collision, the accused’s truck speed was gradually increasing to just before the collision (90.1, 90.9, 90.9, 91.7, 91.7, 92.5, 93.3 kms/hr). Common sense tells me that this data signifies that the accused was leading up to and beginning a controlled pass of the Pascal Plourde vehicle. That pass was interrupted by the unfortunate appearance of the Messenger truck.
[99] But was what Pascal Plourde described dangerous driving?
[100] On all of the evidence in this case, I find beyond a reasonable doubt, that on an icy road, with occasional blowing snow and whiteout conditions of which everyone on that road was aware, the accused caught up to Pascal Plourde’s Ford truck in the southbound lane and then began to pass it in the northbound lane without hesitating to check the road ahead. This manoeuvre demonstrates the same attitude of mind as the accused’s passing of the southbound cars that nearly resulted in disaster for Kestner and/or the drivers in the southbound lane minutes before, and was not a momentary lapse in judgment. It was only during the passing of Pascal Plourde that the accused saw Messenger’s oncoming headlights, and he pulled sharply left to take the ditch out of an instinct for self-preservation. This was not a simple mistake of overcorrecting the wheel when the accused felt it pulling right. Rather, the accused had been attempting to take his truck past a Ford with a U-Haul without first ensuring lane clearance ahead.
[101] I find that, in light of all of the relevant evidence about road and weather conditions and the other circumstances in this case, a reasonable person, especially one driving a vehicle the length of a truck and trailer combination, would have foreseen the risk of such an attempt at passing, and would have avoided the attempt. The accused should at least have paused before passing, to ensure that the road ahead was clear, for a reasonable driver would anticipate that other vehicles could be approaching in the northbound lane. As Pascal Plourde, a prudent driver, explained, in such conditions a driver should wait for a straight stretch where visibility allowed for the checking of road clearance ahead before attempting a pass, and thereby avoid surprises in sudden whiteouts.
[102] The accused’s failure to foresee the risk of his manoeuvre and to take steps to avoid it represents a marked departure from the standard of care expected of a reasonable person in the accused's circumstances. I would go so far as to say that, in the context of the accused’s experience with the Home Hardware truck minutes earlier, and the narrow escape in that situation by several persons from potential disaster, the accused’s attempt to pass the Ford driven by Pascal Plourde represents almost a wanton and reckless disregard for the lives and safety of those around him.
[103] I therefore am satisfied beyond a reasonable doubt that the accused drove dangerously at this point as well.
Conclusion
[104] Given that the accused’s dangerous attempt to pass Pascal Plourde’s truck resulted in the death of Gary Messenger, whose own northbound truck had no chance to avoid collision with the accused’s truck because of the driving of the accused, I find that the sole count on the Indictment, dangerous driving causing the death of Gary Messenger, has been made out.
[105] A conviction will be registered on that charge.
A.D. KURKE J.
Released: February 9, 2018
COURT FILE NO.: 21319/17
DATE: 2018-02-09
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
JASVIR SINGH
Reasons for Judgment
A.D. KURKE J.
Released: 2018-02-09