Her Majesty the Queen v. Mohinder Saini

Oshawa Court File No.: 14438/17 Date: 2018-09-14 Ontario Superior Court of Justice

Between: Her Majesty the Queen – and – Mohinder Saini

Counsel: David Parke and Heather Cook for the Crown Carlos Rippell for the Accused

Heard: June 4-8, June 11-14, June 18-19 and June 21, 2018.

Before: Shaughnessy J.

Reasons for Judgment

[1] On October 2, 2015 at approximately 10:30 pm. a transport tractor and trailer travelling westbound on Highway 401, at a construction zone between Brock Road and Salem Road, in Whitby, Ontario was involved in a catastrophic collision resulting in the death of 4 persons and serious bodily injury of 9 others.

[2] Mohinder Saini (the "Accused") is indicted on 4 charges of dangerous driving (s. 249 (4) of the Criminal Code) causing the death of Carl Laws, Jackie Laws, Jesus Duran-Flores and Cuauhtemoc Duran-Flores; and 9 counts of dangerous driving causing bodily harm (s. 249 (3) of the Criminal Code) to Mario Duran-Garcia, Patricia Flores-Ramirez, Patrick Perna, Olga Bondar, Dimitry Noritison, Kathleen Thompson, Dominic Brown, Ashleigh Waller and Surjit Sekhon.

[3] The three essential elements that the Crown must prove beyond a reasonable doubt for dangerous driving are:

(a) that the Accused operated a motor vehicle;

(b) that the Accused operated the motor vehicle in a manner that was dangerous to the public; and

(c) that the Accused's operation of the motor vehicle caused the deaths or bodily injuries of the persons previously referenced.

[4] The Crown and Defence have agreed to the facts that the Accused was the driver of the transport tractor and trailer and further that the cause of the deaths and serious bodily injuries was the accused's operation of the motor vehicle (Admission # 1).

[5] Accordingly, the only essential element remaining in issue is whether the Crown has proven, beyond a reasonable doubt that the Accused's operation of the motor vehicle was in a manner that was dangerous to the public.

Overview

[6] There were 20 vehicles involved in this collision. The Crown and the Defence agreed to a statement of facts which consists of statements made to the police or evidence provided at the Preliminary Hearing of a number of witnesses. The Agreed Statement of Facts (Admissions # 3 and Admission #4) are filed pursuant to s. 655 of the Criminal Code. Likewise, filed as Agreed Statement of Fact (Admission # 2) pursuant to s. 655 of the Code, is the thorough mechanical examination of the Accused's tractor and trailer as well as 14 other vehicles involved in the collision. The evidence provided by these Admissions substantially reduced the length of this trial.

[7] The Crown called six civilian witnesses and 3 OPP constables including an accident reconstruction expert to provide viva voce evidence and to which reference will be made throughout these Reasons for Judgment.

[8] After all the evidence for Crown and Defence was called and at the commencement of closing argument, Mr. Rippell, counsel for the Accused, advised the Court as follows:

(a) The manner in which this collision occurred as detailed in the evidence of Officer Frei, the accident reconstruction expert, is not challenged or in dispute by the defence.

(b) The cause of the collision was the driving of the Accused, as detailed in the evidence of Officer Frei.

(c) The actus reus is conceded and the driving of the accused at the collision was objectively dangerous.

(d) The defence states that the central issue is whether the Crown has proven the mens rea of the offence beyond a reasonable doubt.

[9] In the course of closing submissions, counsel for the accused argued that the evidence established nothing more than a momentary inattention by the accused which does meet the modified objective test of a marked departure in driving of a reasonably prudent driver. The defence relies on a number of cases where the accused, without warning, fell asleep or suffered a seizure from epilepsy while at the wheel of a vehicle. In these cases, the accused were held not to be morally culpable. The analysis of those cases will be reviewed later in these reasons.

[10] In brief summary, the collision occurred in the westbound lanes of Highway 401 at the Town of Whitby. The roadway in the area of the collision consisted of 3 westbound lanes. However, there was a planned lane reduction for nighttime construction from three lanes to one lane in the collision area. Accordingly, at the time of this collision, traffic was in a "construction zone" and slowing or in some instances stopped due to the lane reductions. This collision occurred approximately 1.6 km after vehicular traffic entered the construction zone. The weather and visibility was good. The roads were dry.

[11] The topography of the area in the "construction zone "and the "collision zone" is shown in the Traffic Control Plan filed as Exhibit # 9 and in the accident reconstruction report and police photographs, filed as exhibits. The sequence of Bridges or overpasses for a vehicle travelling westbound on Highway 401 is as follows.

(a) A short distance west of the Brock Street Bridge or overpass in Whitby marks the easterly boundary of the construction zone.

(b) The Henry Street Bridge is a short distance west of the Brock Street Bridge but is prior to the collision area.

(c) The Highway 412 Bridge and ramps were under construction as part of the 407 Highway Eastern Extension Project.

(d) The next interchange after the collision site was Salem Road in Ajax Ont. This was the boundary for the westerly limit of the construction zone.

Collision area

[12] There is a modest curve to the left for westbound traffic as depicted in Exhibit # 16 (OPP helicopter photos of October 3, 2015 police image 400. See also "collision area" at pg. 8 of the collision reconstruction expert report, exhibit # 15.) The collision area commences at or near the end of the curve.

[13] A 2015 Volvo tractor with a 2016 Stoughton trailer combination ("Saini transport") operated by the accused was travelling westbound on Highway 401 in the construction zone. In the "collision area" the Saini transport first struck a 2011 Ford Fiesta ("Ford Fiesta") at the rear left corner. Both vehicles were in the middle lane. The force of the collision propelled the Ford Fiesta forward and caused it to rotate clockwise The uncontested evidence of the accident reconstruction expert is that the Saini transport, when it struck the Ford Fiesta was travelling between 83.2 km/h and 102.4 km/h. The Ford Fiesta was travelling at approximately 1.5 km/h at the moment of collision. As a result of the collision, the Ford Fiesta struck a 2007 Kia Sedona and a 2009 GMC Canyon.

[14] The collision reconstruction expert's evidence is that the Saini transport, just prior to striking the Ford Fiesta, in the middle lane, had begun to turn out to the left and enter the passing lane. After the impact with the Ford Fiesta, the Saini transport continued in the passing lane striking a number of vehicles and sending them to various rest positions detailed in Exhibit # 3 and # 4. The expert evidence establishes that the accused applied his brake 1.5 seconds prior to striking the Ford Fiesta, then his foot went off the brake for a fraction of a second and then he applied the accelerator pedal continuously after striking the Ford Fiesta and thereafter only intermittently applied the brakes in the course of the other collisions.

[15] The next movement of the Saini transport, while travelling in the passing lane, was a turn toward the middle lane and striking several other vehicles in its path of travel. The Saini transport came to rest after compressing a 2012 "Chevy Equinox" and a 2012 "Hyundai Tucson" and then striking the rear portion of a 2012 Freightliner tractor trailer (the "Gibson" transport).

[16] The brake force analysis as well as the test drive evidence establishes that there was a clear unobstructed view of the collision scene from the Henry Street overpass to the collision area for a westbound driver and that the Saini transport could have stopped within 60 to 63 m. (198 – 207 feet) with a hard braking achieving a 90 psi application.

[17] There were no weather or road conditions which were a factor relating to the collision. The posted speed in the area of the collision was 100 km/h.

[18] The evidence establishes that there were a number of construction signs erected in the area advising traffic that they were entering a construction zone. There is substantial evidence that lane closures were in effect and that the three westbound lanes were reduced to one lane (the curb lane) when the Saini transport struck the Ford Fiesta. There is evidence that a significant number of rear brake lights of vehicles were visible to vehicles approaching the collision scene travelling westbound.

[19] The sight line analysis conducted and the brake force analysis in the reconstruction report combined with the expert evidence of OPP Officer Frei determines that the accused should have been able to stop his vehicle prior to the collision area.

[20] The distance from the Brock Street Bridge overpass to the collision with the Ford Fiesta is 2 km. The collision occurred 1.6 km. from the commencement of the construction zone.

Positions of the Parties

[21] The position of the Crown is that the accused drove his tractor-trailer on Highway 401 knowing he was going into a construction zone and intentionally or recklessly failed to look out his windshield. The significant inattention, in the circumstances described by witnesses and in the objective evidence amounts to a marked departure of the standard of care of a reasonably prudent driver. The Crown submits that the accused's driving was dangerous having regard to all the circumstances.

[22] The position of the defence is that the mens rea of the offence has not been proven by the Crown beyond reasonable doubt. A second position of the defence is that the collision of October 2, 2015, was not a marked departure from a reasonable driver, and is not deserving of criminal sanction.

[23] The defence called two expert witnesses, Dr. Colin Shapiro, a psychiatrist, with a particular focus on "sleep medicine" and Dr. Christina Rudin-Brown, PhD., a psychologist, who provided evidence relating to "human factors" in relation to reconstruction analysis of a collision. In brief summary, it is their combined evidence that the accused had an undiagnosed condition of moderate obstructive sleep apnea. This condition coupled with a human factor analysis of "risks of fatigue" leads to the defence position that on the day of the collision, the accused was tired and fatigued by reason of a diagnosed underlying renal condition which made him "vulnerable but fit to drive." Therefore the accused "drove without awareness" for several kilometers and then just prior to the collision he had a "micro sleep." The defence position is that the unexpected momentary lapse of attention by reason of a "micro-sleep" does not attract criminal liability.

Principles of Law applicable to the Actus Reus of Dangerous Driving

Actus Reus

[24] The actus reus of dangerous driving is to be viewed objectively. This means reviewing all the surrounding circumstances and "viewed objectively did the accused exercise the appropriate standard of care." The consequences of the driving are not material, rather it is the manner in which the motor vehicle is operated that is the issue. (R. v. Hundal 1993 (SCC), [1993] S.C.J. No.29; R. v. Beatty 2008 SCC 5, [2008] 1 S.C.R. 49; R. v. Roy 2012 SCC 26.)

[25] In R. v. Laverdure [2018] O.J. No. 3595 at para 20, the Court of Appeal stated the "actus reus" of dangerous driving "is well captured by the language of s. 249 of the Criminal Code. The manner of driving must be dangerous to the public, having regard to all the circumstances in which the driving occurs." Section 249 of the Criminal Code provides that everyone commits the offence of dangerous driving who operates,

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 at that place

[26] I reiterate that the defence in closing submissions, conceded that the collision reconstruction expert report and opinion were not in dispute and it was acknowledged that Mr. Saini's manner of driving was objectively dangerous. The focus of the defence in closing submissions is on the mens rea required for dangerous driving. However, I find it necessary in light of the closing submissions made by the defence to review the actus reus element of the offences.

Evidence Relating to "All the Circumstances" of the Collision

a) Construction Zone Signage

[27] The Crown called Mr. Nikola Milik who was the traffic supervisor for the "407 East Extension Project". In the role of traffic supervisor he was responsible for construction plans and appropriate signage in the construction zone.

[28] Mr. Milik testified concerning the construction signs that were erected for the long term as well as the signs, trucks and barrels that were out in the collision area the evening of October 2, 2015. Mr Milik did testify that he could not personally confirm that all of the signs in the construction plan had been erected by the time of the collision. In summary his evidence was that:

(a) The construction teams would erect the signs warning about the closure before the tiger barrels were put out actually closing the lanes;

(b) In the 3 prior years of construction the signs were never erected improperly;

(c) On the evening of October 2, 2015 when he arrived at the collision scene, at least some tiger barrels for the lane closure had already been erected.

(d) Upon his arrival at the scene he had to make arrangements for the construction zone to be a "pick-up" process as opposed to a set-up.

[29] I find Mr. Milik's testimony to be reliable and the logical inference to be drawn is that the lane closure plan had been erected in accordance with Exhibit # 10 which is a 3 page diagram titled Traffic Control Plan.

[30] The Traffic Control Plan provides information that permanent traffic signs for westbound Highway 401 traffic were in place on October 2, 2015 as follows:

i. Two Orange signs "(black Arrow) Construction 2 km ahead" positioned approximately 2 km. east of the Brock Street Bridge at Whitby.

ii. Two Orange signs "(black Arrow) Construction 1 km ahead" again positioned approximately 1 km. east of the Brock Street Bridge

iii. Two Orange signs "(black Arrow) Construction" which were located between Brock Street and Henry Street (which is west of Brock)

iv. Two signs each in Black and White stating "Construction Zone Begins" and "Speed Fines Doubled in Construction zones when workers present."

These signs were located just west of Brock Street.

[31] On October 2, 2015, just prior to the collision, the following temporary signs were erected:

i. Two Orange "men at work" signs which were located just east of Brock Street;

ii. Two Orange "Lane closing symbols" located just west of Brock Street;

iii. One "Diamond arrow"

iv. One Orange "Light up/flashing arrow"

v. Two Orange "Lane closing symbols" west of Henry Street before the curve on Highway 401;

vi. One Orange "Diamond arrow" just before the commencement of the curve

vii. One Orange "light up/flashing arrow" located in the middle of the curve.

[32] In addition to the evidence of Mr. Milik there is also the testimony of the witness Jack Logan who travelled through the construction zone at least 20 minutes prior to the collision. Mr. Logan testified about the sudden deployment of blocker trucks taking up two lanes westbound (the passing and middle lanes). Blocker trucks perform the function of travelling from the shoulder of Highway 401 westbound to the passing lane and then another to the middle lane to provide protection for workers who set up tiger barrels and then do work in the construction area. The blocker trucks close first the passing and then the middle lane. The blocker trucks have flashing lights and a large directional signal attached to the rear of the trucks. I accept Mr. Logan's evidence, at least in relation to the blocker trucks positioning and directional signage on their tailgates. There is other evidence of a witness in the construction zone who references what I interpret to be blocker trucks with signage (Admission #4 witness at tab 12). I find a reasonable inference from the testimony is that with the blocker trucks out closing lanes 20 minutes before Mr. Saini's arrival at the collision scene, then lane reductions had already commenced when the collision occurred.

[33] The evidence of this lane reduction is also supported by the testimony of Ms. Carrie Brown. Her evidence, which I find to be credible and reliable, is that prior to the collision the traffic was slowing as the signs had her move from the express or passing lane to the middle lane and then into the curb or right lane.

[34] There was also evidence which I accept that there was a large portable digital notice board sign on a trailer located near the north shoulder of Highway 401 westbound just east of the Brock Street Bridge which stated "Two left lanes closed ahead."

(b) Accident Reconstruction

[35] The Defence does not challenge OPP Officer Frei's expert reconstruction report or the findings referenced in his report. Indeed, the Defence did not cross-examine Officer Frei.

[36] I find that the collision reconstruction report (Exhibit # 15) is accurate and reliable and it is based on the statements of witnesses, roadway markings and debris as well as speed and brake force analysis using imaged data taken from a number of vehicles and transports including the Saini transport.

[37] In assessing the accident reconstruction report I will focus on the central components of the report in an effort to simplify the sequencing of events. There were more collisions involving many vehicles which I am not referencing here.

[38] The first significant conclusion of the collision reconstruction report, supported by the evidence that I accept as credible and reliable, is that the first vehicle that the Saini transport struck was the Ford Fiesta. The Ford Fiesta was travelling westbound in the middle lane when it was struck in the left rear by the Saini transport. This collision caused the Ford Fiesta to strike a 2015 Honda Odyssey Van which in turn caused this Van to strike a 2009 GMC Canyon.

(i) Time-Distance Study

[39] A Time –Distance study which forms part of the collision reconstruction report provides downloaded details what the Saini transport and the Ford Fiesta were doing as they passed through the collision area. The time-distance study establishes the following:

(1) At five seconds before impact with the Ford Fiesta:

(a) The Ford Fiesta is the vehicle immediately in front of the Saini transport.

(b) The Saini transport was 137.1 m back from the impact area but the Ford Fiesta was only 7.8 m. back. This would put the accused likely in the middle of the curve.

(c) The Ford Fiesta was travelling 22.4 km/h, with its brakes activated.

(d) The accused continues to operate his transport at 104 km/h and does not start braking for another 3.5 seconds.

(2) At four seconds before impact with the Ford Fiesta:

(a) The Ford Fiesta is still immediately in front of the Saini transport.

(b) The Ford Fiesta is still braking and had slowed to 14.8 km/h and had moved forwards 5.97 m.

(c) The accused is still not on his brakes and travelling at 104 km/h.

(3) At three seconds before impact with the Ford Fiesta:

(a) The Ford Fiesta remains in front of the Saini transport.

(b) The Ford Fiesta brakes are still applied and it has slowed to 7.1 km/h and moved forward 4.12 m.

(c) The accused has still not applied his brakes and is travelling at 102.4 km/h

(4) At two seconds before impact with the Ford Fiesta:

(a) The Ford Fiesta is immediately in front of the Saini transport.

(b) The Ford Fiesta is still on the brakes and had slowed to a near stop at 2.8 km/h.

(c) The Saini vehicle has not braked, the accelerator is at 22% and its speed is 102.4 km/h

(5) At one second before impact with the Ford Fiesta:

(a) The Ford Fiesta is still immediately in front of the Saini transport and they are 21.61 m. apart.

(b) The Ford Fiesta is travelling at 2 km/h.

(c) The accused has now applied his brake and his speed slowed to 100.8 km/h.

(6) At the approximate point of impact (time 0.0) the following is established:

(a) The Ford Fiesta is struck travelling between 1.5 and 1.7 km/h. It is a rear impact though off-set to the left.

(b) The reconstruction evidence of an examination of the Ford Fiesta's tire marks suggest that it was likely in its own lane (middle lane) at the time of impact.

(c) The accused remained on his brake and his speed is decreased such that he is travelling between 83.20 and 89.60 km/h.

(d) The defendant has taken some evasive action beyond braking, as the tire marks suggest that the accused's transport is in a slight offset in the left of the middle lane, heading into the left or passing lane.

[40] In relation to stopping distances the unchallenged evidence of the reconstruction expert is that the Saini transport, depending on the weight distribution, could have reduced its speed from 104 km/h to 0 in 60-63 meters in 4.1 to 4.3 seconds. On the basis of the time/distance study, the accused was 137.1 m. from the impact area at the 5 second mark and the Ford Fiesta was travelling at 22.4 km/h. There was clearly sufficient braking space to avoid striking the Ford Fiesta. On the basis of the study and analysis there was sufficient braking space up to and including the three second mark before the collision to bring the Saini transport to a stop with hard braking.

[41] As part of the accident reconstruction report, OPP officer Michael Frei, accompanied by PC John Jameson on October 26, 2015 at approximately 12:40 am conducted a drive through from Brock Street to Salem Road (the "construction zone"). A 2012 Volvo tractor similar in structure and nature to the 2015 Volvo Saini tractor was used for the test. OPP Officer Frei testified that "collectively with this drive through, reviewing the scene of the diagram and topography of the roadway [he] determined that commercial motor vehicle operators had a vantage point of view which was not obstructed by the environment or structures along the highway" (emphasis added). Therefore, the conclusion reached by OPP officer Frei was that the "sight line and distance from Henry Street to the collision area afforded an unobstructed view ahead". I accept and adopt this conclusion.

(ii) The Saini Transport Movement after Striking the Ford Fiesta

[42] After striking the Ford Fiesta, the accident reconstruction report, again relying on the Saini transport recorded data, indicates that the accused took his foot off the brake. The nature of the impact with the Ford Fiesta and the roadway analysis and the evasive action of moving left is the basis on which the defence experts, Dr. Shapiro and Dr. Rudin-Brown opine that the accused had been sleeping prior to this point, as the evasive action could not have been undertaken while the accused was asleep. The testimony of the defence experts will be discussed in more detail later.

[43] I will be discussing the testimony of Mr. Saini in more detail later in these reasons. However, I pause to note that Mr. Saini is adamant that he was constantly on the brake before the collision; he was not jostled from his seat in the course of the impact; and he never applied the accelerator after braking. Further, he testified that he believes there was no pedal misapplication by him.

[44] Following the impact with the Ford Fiesta in the middle lane, the Saini transport continues to turn left and enters the passing or express lane. The Saini transport hits a number of vehicles and causes a number of chain reaction collisions while travelling in the passing lane. The accused then turns right and again enters the middle lane striking a number of other vehicles. The Saini transport then struck the "Gibson" 2012 Freightliner and CSC trailer which was operated by Kathleen Thompson. The force of the impact caused the "Gibson" transport to move forwards 15-16 meters.

[45] After impacting the "Gibson" transport the Saini vehicle kept moving forward and eventually pinned a 2012 Chevrolet Equinox and impacted a 2012 Hyundai Tucson. The evidence of the reconstruction expert was that neither the Hyundai Tucson nor the Chevrolet Equinox struck the "Gibson" transport from behind before being stuck by the Saini transport. I find that this conclusion is correct and supported by all the relevant evidence.

[46] The "Gibson" tractor trailer, driven by Kathleen Thompson, had a data recorder which in summary indicates that in the 1 minute and 15 seconds prior to the collision, the "Gibson" tractor trailer was never travelling more than 10 mph. The evidence which I accept as reliable is that the following information has been obtained from the "Gibson" transport data recorder:

(a) At 1 minute and 29 seconds prior to final rest, the "Gibson" transport is travelling between 10.5 mph to 0 mph and is slowing gradually for 30 seconds.

(b) At 1 minute and 05 seconds prior to final rest the "Gibson" transport is travelling 0 mph to 6.5 mph and stopped briefly before inching forwards.

(c) At 0:45 seconds before final rest the "Gibson" transport is travelling 0 mph to 7 mph and again stopped. After 6 seconds, the "Gibson" transport is inching forward.

(d) At 0:22 seconds before final rest The "Gibson" is travelling 0 mph to 0.5 mph and it is stopped until impact.

(e) At 0:08 seconds before final rest the "Gibson" transport was travelling 2 to 10.5 mph. and is struck from behind and moved forwards 16 meters.

[47] After reviewing the reconstruction expert evidence, the testimony of Kathleen Thompson, and the accused's driving in the "collision zone", I find as a fact that the "Gibson" tractor trailer was stopped or near stopped for a significant period of time before it was rear –ended. Contrary to the accused's testimony and police statement, the "Gibson" transport did not jam on its brakes and there was no vehicle between the Gibson transport and the Accused's truck that suddenly jammed on its brakes, striking the back of the "Gibson." The reconstruction report and the evidence of the expert OPP Officer Frei, which I accept as credible and reliable, demonstrate that the accused's version of the events is clearly wrong.

[48] The force of the impact between the Saini transport and the "Gibson" transport was very significant as it pushed the "Gibson" transport, with a full load, forward 15-16 meters.

(iii) Objective Evidence of Stopped or Slowing Traffic

[49] The analysis of the reconstruction expert evidence of the speeds of a number of vehicles, taken from an analysis of their recorded data, in the area of the "Gibson" and the accused's transports, also supports the Crown's position that vehicles in the area were stopped, but occasionally coming off the brake and engaging the brake lights and inching or moving forward. A summary of this evidence which I accept as reliable and credible is as follows:

(a) A 2011 Toyota Sienna was stopped 4.9 seconds before it was impacted, but did just come off the brake before impact and was travelling 2.5 km/h at impact.

(b) A 2014 Hyundai Accent was travelling 15 km/h just before its impact. The vehicle was gradually slowing down to 11 km/h over 3 seconds. The evidence of Officer Frei is that the impact of the Accused's tractor/trailer was of such force that it caused the Hyundai Accent to accelerate from 11 km/h to 47 km/h over the course of 0.5 seconds. Officer Frei described this as "extremely great acceleration."

(c) A 2014 Orange Fiat was travelling between 5 and 24 km/h just prior to the collision. While not on the brake, the accelerator was just under 4%. The driver of this vehicle (Admission 4 Tab 1) states that she had been travelling at highway speeds prior to the collision. She then braked for traffic slowing or stopped ahead. It was only the removal of her foot from the brake which caused the slow acceleration of her transport up to 24 km/h.

(d) The driver of a 2008 White GMC Yukon provided evidence that she was stopped in the 2.5 seconds prior to impact. (Admission 4 Tab 3).

(e) The downloaded information of the 2012 Chevy Equinox establishes that this vehicle was travelling between 0 to 4 km/h in the 5 seconds prior to impact. This is the vehicle that the accused references in his statement to the police and his testimony at trial. The accused states that this Chevy Equinox was between himself and the "Gibson" transport and braked suddenly and then struck the back of the "Gibson" transport. The evidence establishes, and I find as a fact, that the Chevy Equinox was stopped well before the collision and did not strike the "Gibson" transport until it was pushed into it by the accused's transport.

(f) The 2012 Hyundai Tucson was found at rest between the accused's transport and the "Gibson" transport. The evidence is that this Hyundai Tucson was travelling between 1 to 4 km/h in the 5 seconds prior to the collision. At the point of the collision the speed of this vehicle was 0 km/h.

(iv) Log Book

[50] Filed as Exhibit # 21 is the accused's log book of his transport travels from September 14, 2015 to October 2, 2015. The log book indicates that the accused, on October 2, 2015 travelled through Whitby on Highway 401 westbound.

[51] On September 24, 2015 the log book indicates (and Mr. Saini agrees) that he picked up a shipment in Mississauga at 11 pm. and travelled through Durham region on Highway 401 eastbound and stopped in Napanee at 2:00 am. The 407 Construction Road Plan indicates that on September 24, 2015 there was eastbound lane closure in the construction zone from 11:00 pm to 6:00 am.

[52] On September 22, 2015 the accused drove eastbound from Mississauga to Montreal from 1 am to 7:30 am. Again a reference to the 407 Construction Road Plan indicates that on September 21, starting at 11 pm, two eastbound lanes were closed.

[53] The accused's log book also indicates that on September 19, 2015 the accused drove eastbound from Mississauga to Napanee from 1:00 am to 4 am. Commencing on September 18, 2015 at 11 pm two eastbound 401 lanes were closed (reference the 407 Construction Road Plan).

[54] On September 16, 2015 the accused drove westbound on Highway 401 from Napanee to Mississauga from 11:30 pm to 3:00 am on September 17. According to the 407 Construction Road Plan starting at 10 pm on September 16, two left lanes subsequently followed by one right lane westbound 401 were closed.

[55] The log book entry for October 2, 2015 together with the testimony of the accused is that he woke up at 6:00 am, had breakfast and went to his tractor at 6:30 am. He drove his tractor to a loading dock in Sorel, Quebec, arriving at 8:30 am. The shipment was not ready to go so he parked his tractor in the loading area and went to the bunk in his cab and slept to 2:00 pm. He then began his trip with the tractor /trailer from Sorel to Montreal and then on to Mississauga with a planned stop in Napanee along the way on Highway 401 westbound. His stop at Napanee is shown in a video of him at the cashier in the gas station.

(b) Subjective Knowledge

[56] In cross-examination at trial, the accused testified that in driving a transport in a construction zone his awareness is heightened. He testified that he does his "level best" to pay specific attention for construction signs. He acknowledges that the law requires that, if slowing down, the four way flashers have to be engaged on the transport. He acknowledges that he has to do all these things to be cautious and more aware driving a transport in a construction zone.

[57] The accused testified that he knew the collision area was in a construction zone. He stated that he was aware that construction was being undertaken in that area, however, on October 2, 2015 "I have not seen any sign." He testified that he was aware from "previous trips" that "construction is taking place in that area." In the testimony at trial the accused stated that as he approached the construction area his foot was on the brake and that before any collision with any vehicle his foot was on the brake. The time-distance study and the download of the Saini transport data clearly contradicts the accused's version of events. I reject the accused's evidence on this point as neither credible nor reliable as it is not supported by the evidence of the objective data or the many witnesses outlined which I do accept. The defence in closing submissions invited the Court to ignore Mr. Saini's evidence and that the defence accepted the evidence of OPP Officer Frei as accurately providing the details of the actus reus of the offence.

(c) The Accused's Statement to the Police and Testimony at Trial

[58] The accused, after being cautioned, gave a roadside statement to OPP Officer Zafar Kazmi. The accused and Officer Kazmi conversed in Hindi. There was no issue with respect to voluntariness of this statement at trial. The accused's statement was introduced by the Crown and is marked as Exhibit # 13.

[59] In his statement to the police, the accused states that on the date of the collision he picked up a shipment of scrap metal from Sorel, Quebec. The total weight of the load was approximately 76,000 lbs. The accused left with his load at approximately 2:30 pm and he stopped at Napanee for gas at approximately 8:30 pm.

[60] The accused states that he was travelling in the center lane at 90 – 100 km/h and there was a "Gibson" transport in front of him with another car between him and the Gibson transport. He stated:

"all of a sudden the Gibson truck jammed on his brakes very hard and very fast. I then also jammed on my brakes also (sic). The car in front of me ….. also tried to stop but it hit the back of the Gibson truck….. on the rear left of that truck. I tried to move my truck to the right lane to avoid hitting the car between me and the Gibson truck. I went partially into the right lane. I then heard noise from my right side. I then noticed there was a car to my right that I had hit so I went to my left side. I ended up hitting the car that was between the Gibson truck and myself. ….then from the left side there was another car that got struck with my left side. My truck then came to a stop…..

[61] The accused in his statement to the police stated he did not know why traffic was stopped and asked whether he saw any construction signs or vehicles or speed advisory the accused responded "No there was nothing like that I saw." Asked if he knew he was in a construction zone the accused responded "No, No, there were no signs at all." He denied that he was on his cell phone and when asked if he fell asleep, the accused answered "No, not at all."

[62] The accused's evidence at trial is that his routine transport driving was between Montreal and Toronto and very occasionally a different route. He had been a truck driver in India and then when he came to Montreal in 2002, he obtained a Quebec truck driving license.

[63] Mr. Saini testified, in examination-in-chief, that as a result of travelling the Montreal to Toronto 401 route he was aware of the construction zone and he had observed the construction often when he travelled through the area. He testified that he was aware the construction took place at night and included lane closures at this location.

[64] In examination-in-chief, the accused testified that on October 2, 2015 when he got to the construction zone there was a truck ahead of him and a car in between the trucks. He testified that the truck he was following suddenly braked and the car as a result hit this truck. The accused states that he applied his brakes and he never took his foot off the brakes. He states that he did not touch his accelerator from the time he applied his brakes. He testified that he turned his steering wheel to "save" the vehicle ahead, but he struck this car.

[65] In cross-examination, the accused testified that the truck he was following was the "Gibson" transport and the car was immediately behind the "Gibson" transport and in front of his transport. He stated that he was travelling 90-100 km/h following the vehicle which struck the "Gibson" transport. He testified that this vehicle was going the same speed. He states he had been following the "Gibson" transport for 10-15 minutes in the same lane before the impact between the car and the rear of the "Gibson" transport.

[66] The accused testified that as the driver of a loaded transport he has to be more aware. He testified that driving a transport is much different than driving a car. It is more difficult to change lanes driving a transport and the application of brakes is also different. The accused agreed that because it is much more difficult to drive a transport that he has to be more aware of road conditions including construction areas.

[67] The accused acknowledged that on many other days as he travelled the 401 Highway he saw the construction signs in this area. On October 2, 2015 he states in summary (referencing Exhibit #9) that he did not see any signs commencing with the orange diamond sign indicating "Construction 2 km ahead" as well as the other construction signs that followed. He testified that he does not know why he missed seeing the signs other than stating:

"I did not see the orange diamond sign on that day…I did not pay attention."

[68] The accused was examined at length by the Crown about the application of brakes and the accelerator. The accused testified that he had his brakes on "all the way" and that he never went on to the accelerator pedal after the application of the brakes.

[69] The accused testified that before any collision occurred his foot was on the brake. He testified that when he applied the brakes his transport "slowed down a little bit." Mr. Saini, in cross-examination, indicated that he had "no memory" when confronted with the conclusions of the reconstruction report and the testimony of OPP Officer Frei. He claims to have no memory of striking the Ford Fiesta first. Then when asked which vehicle he hit first, the accused answers that he does not remember. This testimony is a contradiction of his statement to the police. Yet he recalls other details which are favourable to his position at trial. For example he testified that when he moved his foot from the gas to the brake there was no damage to his transport. Mr. Saini, in his statement and testimony at trial, denies vehemently that he fell asleep.

[70] The loss of memory of the accused extends to not seeing the brake lights of a number of slowing or stopped vehicles and trucks across all three lanes of Highway 401 westbound, ahead of his transport. He testifies in cross-examination that he did not hit anyone else except the car directly ahead of him which is the car he tried "to save". He then stated in testimony that if he hit other cars he is unaware of it. This is inconsistent not only with the extensive evidence of witnesses and the accident reconstruction report, but also with the accused's prior testimony and statement. Accordingly, I do not find the accused to be a credible and reliable witness.

(d) The Evidence of Witnesses

[71] There are six witnesses whose evidence at the preliminary hearing is filed as Admission #3 (Exhibit # 22) and further statements to the police Admission #4 (Exhibit # 23).

In Admission #3 (tab 1) the witness is a tractor trailer driver who was westbound. He was aware that there was a construction zone. He testified to seeing traffic slowing and he brought his transport to a stop. He had no difficulty coming to a stop and then he engaged his 4 way flashing lights. He testified to seeing the construction signs including the large digital sign (just east of the Brock St. Bridge) warning that 2 lanes were blocked ahead.

[72] At tab 2 of Admission #3 is the evidence of a tractor trailer driver also travelling westbound on Highway 401. This witness was travelling behind the Saini transport for approximately 10 minutes. She observed the construction "panes" signalling that there was construction ahead. She observed in the distance three lanes blocked and taillights of cars that stopped or flashing that they were stopped. This witness slowed her transport to a very slow speed. The transport ahead of her (the Saini transport) did not decelerate with her. She observed the Saini transport strike a car to the left rear of the car. After the Saini transport struck the car it steered left to avoid a truck, then the Saini transport steered to the right.

[73] At tab 3 of Admission #3 was a driver of a car travelling westbound. He observed the orange construction signs. He saw traffic ahead was coming to a stop. He came to a stop and put on his 4 way hazard lights. This witness testified that he was in the passing lane. He observed a "truck" going relatively quickly and which passed him despite stopped traffic ahead. He saw this tractor trailer strike a Ford Fiesta. The witness was several car lengths back from the collision with the Ford Fiesta. He next observed that the truck then moved over to the left and kept going with no brake lights on.

[74] At tab 4 of Admission #3 is the evidence of a westbound driver who had been travelling in the middle lane and saw that the left lane was being closed for construction. This witness testifies to seeing at least two construction signs. Everyone was coming to a complete stop in his lane and the left lane (or passing lane). There were one or two cars in the passing lane that had their signals on to turn into the middle lane while moving very slowly. All the vehicles were at a complete stop when he heard a "big noise" behind him. He turned to look behind and he saw a big truck driving at a high speed in the left (passing) lane. The truck passed him and he did not see any brake lights on the truck.

[75] The witness evidence at tab 5 Admission #3 states that he was travelling in the right (curb) lane. He remembers construction signs and saw everyone in front of him coming to a stop. He slowed and came to a stop.

[76] The witness at tab 7 recalled that traffic was reduced to one lane westbound as he went through the area between 10:00 to 10:20 pm.

[77] The evidence in Admission # 4 consists of the evidence of 11 witnesses to the collision (exhibit # 23). After reviewing all the statements a clear common observation of these witnesses emerges. All of these witnesses state that traffic was slowing or stopped when the collisions occurred. These witnesses state that the brake lights of vehicles slowing or stopped were clearly visible ahead. All of these witnesses state that the vehicle they were travelling in had stopped or was near stopped when the collisions occurred. Most of the witnesses observed the construction zone warning signs including the large digital sign east of the Brock Street Bridge indicating that two lanes blocked. Most of the witnesses identified a large transport driving at a high speed and not slowing down and striking a number of vehicles.

[78] The Crown called 6 civilian witnesses at trial. A summary of their evidence on the relevant issues is as follows:

Kathleen Thompson

[79] Ms. Thompson has been a professional tractor trailer driver since 1981. She was the driver of the "Gibson" transport. She testified that she came on Highway 401 westbound at the Brock St. ramp in Whitby. She followed a MOES transport a short distance ahead of her. After merging onto Highway 401 she drove her transport into the middle lane. She was familiar with construction in the area and she knew she was going to be slowing down. Kathleen Thompson noticed brake lights of other vehicles 500 feet ahead of her and she slowed down and brought the "Gibson" transport to a stop approximately one car length behind the MOES transport. After stopping her transport, Thompson checked her mirrors and noticed first in her passenger side mirror, then in her driver's side mirror, a truck coming up quickly behind her. She testified that from her passenger side mirror she could see "a glow" or a "light" from the cab of this truck. She testified that saw the driver of that truck clearly in her driver's mirror. She stated that the truck was about 50-100 feet to the rear of her truck when she saw the driver. She states that the driver was wearing a light blue turban, dark glasses on and possibly a beard or shadow.

[80] Kathleen Thompson testified that there was also a car behind her and which she only saw one headlight as this vehicle was so close behind her.

[81] Ms. Thompson testified that the collision to the rear of her truck occurred very shortly after she saw the transport in her driver's mirror. Realizing that she was going to be struck, Thompson testified that she braced herself and she "stood on the brake." The force of the impact sent her fully loaded truck forward into the rear of the MOES transport. She felt two impacts seconds apart. She was already pushed forward when the second impact occurred.

[82] It is the testimony of Ms. Thompson that she believes she lost consciousness for a short period of time as her next recollection is looking left out the driver's door and seeing the driver of the transport that struck her 10 feet away from her driver's door talking on a cell phone.

[83] In cross-examination, Kathleen Thompson stated that in giving evidence of the distance of the transport behind her, she was guessing. She testified that she is certain that this transport swerved left then right. She acknowledged that her testimony at trial differed from her statement to the police relating to which lane the transport was in when she first saw him. She testified that she was in a state of shock and pain when she was interviewed by the police at the hospital.

[84] There is another aspect of Kathleen Thompson's evidence which is not resolved. Ms. Thompson testified that when she looked in her passenger mirror she saw an interior cab "light" or "glow" in the cab of the Saini transport which she testified was "odd." No other witness testified to seeing a light or glow coming from the cab of the Saini vehicle. The undisputed evidence of the OPP is that a search warrant of the accused's cell phone indicated that the accused had not sent any text messages or telephone calls at the time of the collision. The evidence is that the accused did contact the "owners" of the tractor and trailer following the collision.

[85] The evidence of the accident reconstruction report supports the substantive aspects of Kathleen Thompson's evidence, namely that there were lane closures in effect at the collision scene which caused traffic to slow and stop and indeed that the "Gibson" transport was stopped when impacted by the fast moving transport operated by the accused. To that extent I find that Kathleen Thompson's evidence is credible and reliable. However, I do not accept her testimony of seeing a "light" or "glow" coming from the interior of the Saini transport. I also do not believe her evidence is reliable of observing the facial features of the accused in her rear view mirror prior to the collision. Her opportunity to make the observations was momentary in view of the speed of the Saini transport. As with all witnesses, I am entitled to accept some, none or all of the testimony. There were also some inconsistencies in Ms. Thompson evidence at trial with what she testified to at the Preliminary Hearing relating to such matters as to which lanes were closed etc. The inconsistencies were not on substantive matters. I nevertheless find that Kathleen Thompson was doing her best to provide the court with a truthful account of the collision over a few brief seconds. The identity of the accused as the driver of the transport which struck the rear of the "Gibson" transport is not in dispute. Accordingly, with the exception of the evidence noted, I accept the balance of the testimony of this witness.

Todd Dinelle

[86] Todd Dinelle is a truck driver with 13 years of experience. On October 2, 2015, he was driving for Canadian Tire and his trailer displayed the red Canadian Tire symbol generally recognized by the public. Mr. Dinelle was driving westbound on Highway 401 and he was aware of construction in the area although he did not recall seeing any construction signs or workers. He testified that he encountered a traffic slowdown. He stated that approximately 200 feet ahead he could see brake lights in all 3 lanes. Mr. Dinelle was travelling in the middle or centre lane. He was in the process of bringing his truck to a stop and he had slowed to approximately 20-30 km/h when a transport truck came "flying up" beside him on the left side, then it veered back into the centre lane in front of his truck. The trailer of this truck missed hitting his cab by a foot.

[87] He watched the transport travel another 60 feet and then it collided with "parked cars" in the centre and left (passing) lane. It was his recollection that all cars and vans were stopped at the time of the collision. He saw "lots of cars damaged and lots of people hurt." He called 911.

Jason Ninawuchi

[88] This witness was westbound on Highway 401 and witnessed this collision. He was travelling at approximately 115 km/h in the left (passing) lane. As he passed through Whitby, traffic started to slow down due to construction. He recalled that there were signs alerting drivers to the construction zone. As he was coming to a stop he saw a transport truck in the middle lane "continue to barrel down even though the traffic was halted in front of us." He saw brake lights come on just before the transport hit the sedan in the centre lane however he cannot recall if the brake lights stayed on. The transport then veered to the left and hit a car in the passing lane, then the transport continued to travel in the fast (passing) lane until he lost sight of it.

Carrie Brown

[89] Carrie Brown was driving home from work at a GM plant in Oshawa. She had travelled westbound on Highway 401 which had been her route home for the past 10 years. She was driving approximately 100 km/h when she noticed on the right hand side of the road a light board on a trailer just east of the Brock Street Bridge that said "2 Left Lanes Closed."

[90] Ms. Brown was travelling in the right (curb) lane. She saw brake lights in all three lanes ahead so she states she slowed down and eventually stopped in the right lane. There was a tractor trailer ahead of her and "a couple" of cars around her. She was inching forward when she heard a noise and a crash. She turned to the left to look over her shoulder and she saw a "white blur" go by in the far left lane. She testified that this vehicle was going so fast that she didn't get a good look at it, but she thought it was a tractor trailer. She could hear it (the tractor trailer) continue to crash into things but she didn't go up ahead in the collision scene to see where it ended up. She was preoccupied with providing care to individuals injured in other vehicles.

Steve Henderson

[91] On October 2, 2015, Steve Henderson was driving a blue Kenworth truck with double trailers filled with 60,000 litres of naphtha fuel. Steve Henderson has 26 years of experience as a truck driver. As he drove into Whitby westbound on Highway 401 he saw a sign that said 2 lanes blocked. He described the sign as a large orange digital sign on a trailer located east of the Brock Street Bridge. Henderson testified that he could see that 1-2 km ahead that all 3 westbound lanes had "dead stopped" traffic in them. It is Henderson's testimony that he was ¼ km west of the large orange digital sign on a trailer, travelling in the right hand lane, when a white tractor trailer came out behind Henderson and proceeded to pass him in the centre lane. At this point Mr. Henderson stated that he had already dropped 3 gears and put his 4 way flasher lights on and he was travelling 60-70 km/h. Steve Henderson testified that he got on his CB radio to warn the driver using profanities and stating "it's dead stopped traffic in front of you." However this tractor trailer continued to maintain highway speed and drove into the 'dead stopped' traffic ahead. He testified about seeing cars ricochet as a result of impacts.

[92] Steve Henderson also testified about seeing the same tractor trailer in Port Hope which was travelling a various speed necessitating Henderson to pass the tractor trailer several times. He eventually got ahead of the transport and was ahead of it by the time he got to Whitby. I find that nothing turns on the evidence about what happened in the Port Hope area.

Jack Logan

[93] Mr. Logan had travelled westbound through the construction zone before the collision occurred. He was unaware of the collision until he heard about it the next day, October 3, 2015, from news coverage and a phone call from his brother. Mr. Logan did contact the OPP on October 2, 2015, to complain about interaction with blocker trucks just under the Brock Street Bridge. His complaint was that a blocker truck with a flashing light on his tailgate pulled out from the left shoulder aggressively into the left (passing) lane which was the lane that Logan was travelling and according to his testimony caused him to take evasive action. Logan then proceeded to contact the OPP again and volunteer his observations of what is alleged to be the Saini transport while traveling west of Port Hope. Jack Logan was directed by OPP Officer Mark Collins to write out a statement of his details and email it to him. Mr. Logan did type out a statement and sent it as an attachment to Officer Collins on October 16, 2015.

[94] In the October 16 written statement, Jack Logan recounts an interaction he had with a plain generic white truck and trailer, which was either a Volvo or Freightliner. Logan testified that he observed this tractor trailer "lane surfing" in the centre lane of Highway 401 westbound between Waverly and Holt Road which is a short distance west of Port Hope, Ont. Mr. Logan described "lane surfing" as the transport travelling below the highway speed at 75-80 km/h. and it would crowd the dotted line on the left and then the right and at times going over the dotted line separating lanes. Jack Logan also stated he observed a "jerk" reaction when the driver would correct his driving and bring the tractor trailer back to the centre of the lane again.

[95] Logan, who was operating a pick-up truck in the passing lane, testified that he paced the transport for ½ km and then pulled up beside the transport and leaned across the passenger seat of his vehicle to look up at the driver of the transport. Mr. Logan testified that the operator of the transport was an older male of East Indian descent, with possibly a beard. He states that the driver was wearing a turban and he was facing straight ahead and appeared to be "inattentive." Mr. Logan honked his horn but there was no reaction. Logan testified that he looked for the name on the truck so that a company might contact the driver by phone or satellite. He testifies to seeing the word Greenway or Smartway on the logo on the transport and the words Preston, Brampton and Quebec. Jack Logan testifies that he next began to travel at his highway speed of 120 km/h and he last saw the transport in his rear view mirror at Courtice Road in Bowmanville.

[96] The defence challenged Mr. Logan's evidence based primarily that his evidence was based on "media consumption". A significant amount of time was taken up concerning the media outlets that Mr. Logan watched concerning this collision. He testified to watching all the major television stations, radio news, OPP news releases and trucker Facebook group discussions about the fatalities. He admits in cross-examination that he saw photos of the transport in news releases. Mr. Logan stated that he "got to as much information" via media and the internet that he could find relating to the collision of October 2, 2015 as well as mainstream media coverage after Mr. Saini was arrested.

[97] In cross-examination, it is established that Jack Logan in his statement sent to the police October 16, did not mention that the driver of the transport had a beard or was wearing a turban. He also agreed he did not mention how old the driver looked in his statement. Further, in his statement which he typed and sent to the OPP, there is no reference to seeing Greenway or Smartway on a logo on the truck and trailer.

[98] I find that Jack Logan was neither a credible witness nor was his evidence reliable. Mr. Logan is a self-appointed critic of drivers who "lane surf". He testified that he saw "lane surfing" every day on the highway. His testimony was inconsistent in several material aspects as outlined previously. He was argumentative and defensive of the inconsistencies in his evidence. He was not a witness who provided objective evidence.

[99] Mr. Logan testified that his purpose in pacing the transport and then driving up its side was to first alert the driver and to obtain the name on the logo to contact the company so that they could arouse the driver. Despite all his concerns, Mr. Logan does not contact the company or the police. After passing the transport he continues to drive 120 km/h until he arrives at the Brock Street Bridge.

[100] I do not accept as credible or reliable Jack Logan's evidence that he was able to identify the driver of the transport or the logo for the same reason he gave in relation to inconsistencies in his evidence, namely, "it was dark at night" and he could "not see precisely" and he was travelling "80-90 km/h" as he passed the transport. He was leaning over the passenger seat of his vehicle and looking up to the driver window and common sense dictates that he would only be able to get a glimpse of the driver, if at all. Further, it was apparent that Mr. Logan had an agenda and the circumstances of this collision was a self-fulfilling prophecy. He testified that he is passionate about truck driving and safety. He volunteered that "90% of the carnage on highways" involve trucks.

[101] Since I have found the testimony of Jack Logan to be neither credible nor reliable, it is not necessary to consider the "media consumption" issue raised by the defence.

Analysis of the Actus Reus

[102] Even without the concession by the defence in closing argument to ignore Mr. Saini's evidence and accept the findings and conclusions of the reconstruction expert opinion and report, it is apparent that the accused in his manner of operating his transport caused the collision. The evidence is that the collision occurred first with the accused striking the Ford Fiesta in the middle lane and then veering to the passing lane, striking more vehicles and then veering back to the middle or centre lane striking more vehicles and proceeding in the middle lane and striking the "Gibson" transport. I reject the testimony of the accused as neither credible nor reliable. He blamed others for the cause of the collision. Mr. Saini's version of the events leading up to and during the collision is patently false.

[103] Mr. Saini does not see what many witnesses testify can be readily seen namely that there were construction signs and lane closure signs and directional lights and as well as a large digital sign advising of lane closure of the passing and centre westbound lanes of Highway 401. This road closure had resulted in traffic back up and vehicles slowing or stopped as the merger into the curb lane was taking place. The accused does not testify to observing the brake lights of stopped or slowing of vehicles across all 3 lanes westbound. While the burden of proof remains with the Crown, however, Mr Saini's testimony, did not provide any credible explanation as to why he alone did not see the brake lights of stopped or slowing vehicles ahead of him.

[104] Mr. Saini had subjective knowledge that he was travelling in a construction zone and that lane closures took place at night in this area for construction. He had passed through this area eastbound and westbound at night during lane closures in the period September 14 to October 2, 2015.

[105] I find on the evidence that the driving of the accused in the construction zone and more particularly at the collision scene was 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 that at the time is or might reasonably be expected to be at that place." (Criminal Code s. 249 (1)(a)). I find that the following facts establish the actus reus of the offences:

(a) The accused had a clear unobstructed view of Highway 401 westbound ahead of him anywhere from 500 feet to ½ km.

(b) There were construction signs commencing 2 km. east of the construction zone. There was a digital sign board and many construction signs which were seen by drivers including transport drivers prior to the collision area.

(c) The accused was aware that he was in a construction zone and based on his prior travels through the area that there could be lane closures in effect on the night of this collision.

(d) There were multiple vehicles slowing or stopped ahead of the Saini transport with their brake lights on while traffic merged from the passing and centre lanes into the curb lane.

(e) The accused drove his transport at a speed which greatly exceeded a reasonable speed having regard to the lane closures and traffic slowing or stopped ahead.

(f) The downloaded data from the Saini transport and the opinion of the accident reconstruction expert establishes that the brakes on the Saini transport were not applied until 1.5 seconds before impact with the Ford Fiesta. The speed of the Saini transport just prior to the application of the brakes was 102.4 km/h. The Saini transport data indicates that the accelerator was re-engaged after the impact with the Ford Fiesta. The transport swerved into the passing lane and hit more vehicles and swung back into the centre lane hitting more vehicles and ultimately striking the "Gibson" transport.

(g) It is common knowledge that Highway 401 is the major transportation corridor across Sothern Ontario to the Quebec border. It is a heavily travelled route for both tractor trailers and motor vehicles.

[106] The evidence establishes that there were a significant number of construction signs including directional arrows and flashing lights. Traffic was slowing or stopped ahead. There were brake lights on cars and 4 way flashers on transports and flashing arrows all indicative of a need to slow down and come to a stop. There was a considerable amount of time and distance for the Saini transport to gear down and brake the transport and bring it to a complete stop. The data recorder and the speed distance study and brake analysis all confirm that the Saini transport could have been brought to a stop in 4.1 to 4.3 seconds with hard breaking.

[107] The statement and testimony of the accused at trial is neither credible or reliable. This collision never occurred in the manner described by the accused.

[108] I find that the accused had much more than a few seconds to look and observe traffic slowing or stopped across all 3 lanes of Highway 401. I find that the Crown has proven the actus reus of the offences beyond a reasonable doubt and that the manner of driving of the Saini transport having regard to "all the circumstances" as detailed was in a manner dangerous to the public having regard to:

(i) the construction signs, indicating lane closures were in effect;

(ii) the accused had subjective knowledge that he was travelling in a construction zone with potential lane closures in effect.

(iii) he was travelling westbound in a construction zone of a major transportation corridor and it was reasonable to expect and indeed, it was readily visible that traffic would be slowing or stopped ahead;

(iv) the speed of the Saini transport greatly exceeded a reasonable speed having regard to traffic slowing or stopped ahead;

(v) the application of the brake on the Saini transport occurred much too late to avoid the collision.

(vi) there was a clear unobstructed view anywhere from 500 feet to ½ kilometer prior to the collision area where all 3 westbound lanes had multiple vehicles and transports slowing to a stop or were stopped.

[109] The speed of the Saini transport in all the circumstances; the failure to reduce speed in the construction zone due to vehicles slowing or stopping ahead; the failure to brake the Saini transport in a timely manner or to bring the transport to a stop when faced with a backup of traffic ahead establishes that the manner of driving of the Saini transport in all the circumstances was a danger to the public.

[110] Therefore I find that the actus reus of dangerous driving has been proven beyond a reasonable doubt.

Mens Rea

Principles to be applied to the Mens Rea of Dangerous Driving

[111] The "heart" of the defence is that the Crown has not proven the mens rea element of dangerous driving. As stated in R. v. Beatty 2008 SCC 5, [2008] 1 S.C.R. 49 para. 48, the mental element in dangerous driving does not require proof that the accused had a positive state of mind, such as intent or recklessness. The Crown must establish, on the basis of all the evidence, including any evidence about the accused's state of mind that the accused's conduct amounted to a marked departure from the standard of care that a reasonable person would observe in the accused's circumstances.

[112] The mental element in dangerous driving is to be assessed objectively, but in the context of all of the events surrounding the collision. The test to be applied is whether, viewed objectively, the accused exercised the appropriate standard of care and not whether the accused subjectively intended the consequences of his actions. Where, (as in this case) the accused offers an explanation for the manner of his operation, the court must be satisfied beyond a reasonable doubt that a reasonable person in similar circumstances must have been aware of the risk and danger involved in the accused's conduct. The test is to be applied flexibly in the context of the surrounding events. Therefore, where the accused offers an explanation, for example such as in the context of a sudden and unexpected onset of illness, the trier of fact, in order to convict must be satisfied that a reasonable person in similar circumstances ought to have been aware of the risk and of the danger involved in the conduct manifested by the accused. (R. v. Hundal 1993 (SCC), [1993]1 S.C.R. 867.)

[113] Further, the Supreme Court in R. v. Roy 2012 SCC 26 (para.28 and 36) has provided guidance in relation to analyzing the mens rea component of the offence.

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…….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 that 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…..

The focus of the mens rea analysis is on whether the dangerous manner of driving was the result of a marked departure from the standard of care which a reasonable person would have exercised in the same circumstances. (R v Beatty para 48). It is helpful to approach the issue by asking two questions. The first is whether, on all the relevant evidence a reasonable person would have foreseen the risk and taken steps to avoid it if possible. If so, the second question is whether the accused's failure to foresee the risk and take steps to avoid it, if possible, was a marked departure from the standard of care expected of a reasonable person in the accused's circumstances.

[114] The Ontario Court of Appeal in R. v. Burger 2017 ONCA 101 at para 33, has instructed that:

When considering the mens rea element, the court applies a modified objective standard, That is, the court examines all of the circumstances and asks whether a reasonable person placed in the same circumstances would have foreseen the risk and 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 care expected of a reasonable person in all of the circumstances such that an inference of fault from the manner of driving is appropriate. (emphasis added).

[115] In the recent decision of R. v. Laverdure [2018] O.J. No. 3595, the Ontario Court of Appeal stated (para. 23);

The offence of dangerous driving is not proved by showing only that the accused drove in a manner that was dangerous to the public. There is a fault element. The Crown must prove that the manner of driving amounted to a marked departure from the standard of care that a reasonable person would observe if placed in the circumstances in which the accused found himself. The fault component of dangerous driving focuses on the conduct of the accused and is intended to distinguish driving that is sufficiently egregious in all of the circumstances to warrant criminalization from other less serious forms of bad driving such as careless driving: see R. v. Beatty, 2008 SCC 5, [2008] 1 S.C.R. 49, at paras. 36-43, 47-49.

[116] In R. v. Laverdure (para. 25) the Court found that the trial judge, having considered whether the driving was dangerous to the public in all the circumstances did not engage in a similar analysis of the evidence as it related to the mens rea issue. Therefore, it is necessary for a trial judge to identify the "how and in what way" the accused's driving "went beyond negligence or carelessness and reached the level of a marked departure from the standard of care that a reasonable person would show in the same position": R. v. Roy 2012 SCC 26, [2012] 2 S.C.R. 60 at para. 30; R. v. Reynolds, 2013 ONCA 433, at para. 18.

[117] While the defence conceded that Mr. Saini's version of the events of the collision "is not correct", nevertheless the defence position also is that the "inattention" of the accused was only "momentary" and not a "marked departure" such as to attract criminal liability. As the trier of fact, I must not infer simply from the fact that the driving was, objectively viewed, dangerous, that the accused's level of care was a marked departure from that expected of a reasonable person in the same circumstances.

[118] The defence called two expert witnesses, Dr. Colin Shapiro, who is a psychiatrist and was qualified as an expert in "sleep medicine." Dr. Shapiro testified that he runs two sleep clinics and he is the medical director of a third clinic. For the past 40 years his main interest has been sleep studies. He testified that he has now conducted in excess of 1,000 sleep studies. His publications and associations and other qualifications are set out in his C.V. marked as Exhibit # 27. Dr. Christina Rubin-Brown has a PhD in psychology and she been employed since 2012 as the Acting Manager and Senior Human Factors Investigator for the Transportation Safety Board of Canada. She is also employed, as in the present case, as a private consultant to provide expert opinion on human factors in accidents including human factors in accident reconstruction. Her C.V. is marked as Exhibit # 28. She was qualified at this trial as an expert in human factors in accident reconstruction.

[119] Prior to reviewing the relevant evidence of these two experts, it is necessary to reference the testimony at trial of Dr. Harilal Patel who was the family doctor for the accused.

Testimony of Dr. Harilal Patel and Chronic Renal Disease

[120] Dr. Patel retired as a family physician on December 31, 2017. He testified that Mohinder Saini visited him commencing in 2005. Dr. Patel testified that he diagnosed Mr. Saini with "significant" chronic renal disease and hypertension in September 2009. In the normal course Dr. Patel stated that he would follow up every three months with Mr. Saini to monitor the medications and the status of the chronic renal disease. However, Dr. Patel testified that he could not establish regular attendances because of the nature of Mr. Saini's work as a truck driver and his absences from Canada when he travelled to India. In addition Mr. Saini would attend on other physicians while he was staying in India for a prolonged period and these physicians would prescribe different medications which made consistent treatment difficult.

[121] In relation to chronic renal disease, Dr. Patel testified that as a result of blood tests (pre-collision) September 17, 2009, August 19, 2014 and June 30 2015, and (post-collision) July 15, 2016 and June 15, 2017 he was satisfied that Mr. Saini's "renal functional deterioration " had "stabilized" as of October 2015.

[122] Dr. Patel testified that he explained to Mr. Saini in 2009 and again on June 30, 2015 that chronic renal disease was progressive in nature. Yet despite this information Mr. Saini was remiss in attending at regular clinical appointments and biochemical analysis appointments.

[123] Dr. Patel was asked in cross-examination whether fatigue was a symptom of chronic renal disease. He responded that fatigue can be caused by a number of factors and he would not attribute any symptom by itself to a chronic disease.

Medical Appointments of June 8 to July 22, 2015

[124] Once a transport driver reaches Age 65 there is a requirement in Quebec that a Medical Examination Report form be completed and filed with the government Ministry every two years in order to maintain a commercial driver's license. This document was referred to as the "Medical Release Form" throughout the evidence.

[125] In November 2012, Mr. Saini had his Medical Release Form completed by a Dr. Gordon Yee.

[126] On June 8, 2015 Mr. Saini testified that he brought the medical consent release form on a visit to Dr. Patel's office. The evidence is that Dr. Patel did not sign the Medical Release Form and asked Mr. Saini to bring in a list of his medications.

[127] On June 19, 2015 Mr. Saini returns to see Dr. Patel again. The evidence is that Mr. Saini was sent for blood tests. However, at this visit there is also a conversation between Dr. Patel and Mr. Saini about driving trucks. Dr. Patel acknowledges that his clinical notes of this visit indicate that Mr. Saini should not drive heavy trucks. However, Dr. Patel testified that this clinical note does not accurately reflect the nature of his conversation. He testified that he told Mr. Saini to slow down his work schedule and not to drive continuously. At another point in cross-examination Dr. Patel states that he does not recall exactly what he said to Mr. Saini. Notwithstanding his clinical note made at the time of the visit not to drive heavy trucks, Dr. Patel testified that he did not tell Mr. Saini to stop driving heavy trucks. It is noteworthy, that notwithstanding the advice that Mr. Saini acknowledges receiving from Dr. Patel to "slow down", the accused's log book clearly indicates that Mr. Saini did not "slow down" or reduce his work load between June 19 and October 2, 2015. The accused in his testimony at trial stated that the trip of October 2, 2015 was to be his last trip as a truck driver and therefore he had complied with Dr. Patel's recommendation. I reject this self-serving statement as not being credible. At no time before testifying at trial did the accused indicate that the trip of October 2, 2015 was to be his last trip. The accused has demonstrated throughout his testimony that he is not a credible witness when describing events related to the collision.

[128] On June 29, 2015 the accused has another appointment with Dr. Patel. At this visit Dr. Patel testifies that he told Mr. Saini that his renal failure is progressive and therefore he had to reduce his workload.

[129] The evidence of the accused is that after he received the advice from Dr. Patel about slowing down and reducing his workload, he decided to get a "second opinion" and consequently he arranges an appointment with Dr. Gordon Yee on July 22, 2015 who signs the Medical Examination Report on that date (Exhibit # 24). There is no check off of box 10 on the form which relates to kidney failure. This medical release form is submitted to the Quebec ministry by Mr. Saini and he continues to be licenced to drive transport trucks to the date of the collision. There was no evidence provided by Dr. Gordon Yee. Dr. Patel testified that he would have checked off box 10 relating to kidney failure if he had completed the medical release form.

[130] The Crown suggests that the actions of Mr. Saini in relation to the medical release from is evidence of double-doctoring and this demonstrates that the accused is not a credible witness. I have found for other reasons stated that Mr. Saini was not a credible witness and that his testimony is unreliable.

[131] There was no explanation from Dr. Patel or from the accused as to why Dr. Patel did not sign the medical release form. Indeed Dr. Patel seemed quite surprised in cross-examination when it was pointed out to him that he never signed the medical release form. When the Crown suggested to Dr. Patel that he told the accused to not drive heavy trucks because he would be a risk on the road, Dr. Patel responded that the reason he told Mr. Saini to reduce his workload was so that it would not exacerbate the renal condition.

[132] The Crown submitted that a thorough review of Dr. Patel's evidence and the inconsistency between his medical file and his viva voce evidence cannot be reconciled. The changes in the evidence of Dr. Patel as to why he was telling the accused not to drive heavy trucks also cannot be reconciled. However, I find that little is to be gained by pursuing this aspect of the evidence. Mr. Saini, at a minimum, was told to slow down and that his renal disease was progressive. Mr. Saini was not complaining of any symptoms to Dr. Patel relating to chronic renal failure, or being fatigued or sleepiness while driving transports. The accused made a subjective choice not to reduce his workload.

Driving Without Awareness, Sleep Apnea and Micro-Sleep

[133] The defence is not required to adduce any evidence, including the precipitating cause of this collision on October 2, 2015. The burden of proof beyond a reasonable doubt remains with the Crown throughout.

[134] The defence position at trial is that the accused's underlying medical condition of chronic renal disease, of which the accused was aware, made him "vulnerable but a fit driver," and combined with a diagnosis of sleep apnea resulted in the accused "driving without awareness." The defence position, in closing argument, is that the "driving without awareness" due to sleepiness caused by sleep apnea resulted in the rear-end collision with the Ford Fiesta and that pedal misapplication or error caused the subsequent collisions leading up to and including the rear end collision with the "Gibson" transport. It is further submitted by the defence that the inattention of the accused was of such short duration that it does not constitute a "marked departure" in driving.

[135] In support of the position taken by the defence, Dr. Colin Shapiro and Dr. Christina Rudin-Brown were retained to provide expert evidence in relation to the issues of driving without awareness, sleep apnea and "micro sleep".

Dr. Colin Shapiro

[136] The evidence of Dr. Shapiro is that he was retained by the defence to conduct two overnight sleep studies with accompanying day-time wakefulness testing. It is his evidence that over-night sleep tests do not measure day-time sleepiness. It is the day-time tests that measure day-time wakefulness.

[137] Dr. Shapiro's testimony is that the Multiple Sleep Latency Test ("MSLT") was administered and it is designed to determine a patient's capacity to nap. The patient is placed in a dark room, lies on a bed and tries to fall asleep. The scientific measurement is how long, on average it takes a person to fall asleep when given the opportunity.

[138] The second test administered was the Maintenance of Wakefulness Test ("MWT") which measures a person's ability to remain awake. Here the patient is placed in a dim room, sits in a chair, but may not do anything stimulating. The scientific measurement is how long, if at all, it takes the person to nap or fall asleep.

[139] The accused scored in the "normal" range on the MSLT. Dr. Shapiro's conclusion as stated in his report is:

The objective evidence in relation to his sleepiness would indicate that on a Multiple Sleep Latency Test (MSLT) he is not abnormally sleepy.

[140] This objective scientific test results then in an important conclusion, that the accused is "not abnormally sleepy."

[141] Dr. Shapiro testified that the accused remained awake in all 5 of the MWT tests administered, which he stated is rare. Therefore, despite a dim room, sitting in a chair and no activity to occupy his mind, the accused remained awake. The timing of the test is relevant. It was administered immediately after an over-night sleep study wherein the accused was diagnosed by Dr. Shapiro to have moderate sleep apnea.

[142] Dr. Shapiro authored two expert reports in relation to this matter. The first report dated April 16, 2018 relates to an overnight sleep study on April 10, 2018 with the Multiple Sleep Latency Test ("MSLT") and the Maintenance of Wakefulness Test ("MWT") carried out the following day. The opinion in that report was that Mr. Saini had "moderate obstructive sleep apnea" and "fragmented sleep, shortened REM latency". I note that in the "Pre-sleep Questionnaire" Dr. Shapiro stated there is no mention of his chronic renal disease. Further, there is no reference to being subjectively sleepy.

[143] The second report of Dr. Shapiro is dated June 4, 2018 and relates to an overnight sleep study on June 1, 2018. The opinion expressed in this report is the same as in the April 16, 2018 report.

[144] In his examination-in-chief, Dr. Shapiro stated that all the testing took place in April and June 2018. He testified he cannot say with any certainty, but the likelihood of any change in Mr. Saini's condition from October 2, 2015 to the present time are small. He also testified persons may also experience "micro-sleeps" which he described as a 1-2 second very short duration of sleep in which the person does not know what is happening. He testified that a person could experience micro-sleeps in succession----which he described as a "head-bob". He testified that some people may not perceive this sleepiness. Dr. Shapiro testified that based on the time that the collision occurred (approx. 10:30 pm), the number of hours that Mr. Saini had been driving and that Mr. Saini likely had sleep apnea, of which he was unaware, were the cause of a "lack of awareness" leading up to the collision.

[145] Dr. Shapiro testified that the effects of sleep apnea on drivers of vehicles is commonly fatigue and sleepiness.

[146] Dr. Shapiro in his examination-in-chief opined that in balancing the likely and unlikely cause of the October 2, 2015 collision he concluded that Mr. Saini had a decreased sense of awareness for a while followed by a "micro sleep". He testified that in his opinion, this is the most cogent explanation for the collision.

[147] In cross-examination, Dr. Shapiro conceded that a "micro sleep" could not have occurred as the Saini transport entered into and negotiated the curve on the highway. On the facts of the existence of a curve, Dr. Shapiro stated that there was no "micro sleep" in the curve. If there had been a "micro sleep" he acknowledged that the Saini transport would have driven off the roadway. This does not accord with the rest of the evidence. The collision reconstruction report details that the impact with the Ford Fiesta occurred at the end of this curve in the middle lane. The first application of the brakes of the Saini transport occurred 1.5 seconds before impact. In what I perceive as an attempt to rehabilitate his opinion, Dr. Shapiro testified that no one can say with certainty whether Mr. Saini was awake or asleep prior to the collision and therefore he looked "for plausible explanations" and accordingly he concluded that a "micro sleep just before the collision" was a more tenable explanation. Despite no subjective indicia of sleepiness Dr. Shapiro testified that he considered Mr. Saini a "sleepy person".

[148] Dr. Shapiro acknowledged that while he opines that Mr. Saini has sleepiness nevertheless the results of the objective testing is that he has the ability to stay awake. Dr. Shapiro and Dr. Rudin Brown testified that persons with sleep apnea can be unaware that they are fatigued or sleepy.

[149] In cross-examination, Dr. Shapiro testified that he did not have any knowledge of what he described as the "minutia" of the collision including details of multi-lanes of stopped or slowing traffic with visible brake lights and as well as construction signs and directional and flashing arrows.

[150] Mr. Saini was diagnosed with sleep apnea as a result of testing in April and June 2018 by Dr. Shapiro. It is the opinion of Dr. Shapiro that Mr. Saini likely had sleep apnea in 2015 and while he is not absolutely certain, there was little change in the condition in the intervening years.

[151] Dr. Shapiro stated that he was aware that Mr. Saini had a pre-existing thyroid problem and that he had renal failure disease. He testified that he is not qualified to opine on renal failure however, he acknowledged that he was medically aware that renal failure and fatigue can cause sleepiness. He stated that drowsiness and fatigue can stem from renal failure. Yet Dr. Shapiro continued to advance his position stating "to me the big ticket item is the undiagnosed sleep apnea and a 'micro sleep' which were the trigger of the accident."

[152] Dr. Shapiro in cross-examination stated that fatigue, tiredness and a micro sleep would not cause Mr. Saini to provide a false account of what happened to him in the collision.

Dr. Christina Rudin-Brown

[153] Dr. Rudin-Brown has a PhD and has been employed by the Transportation Safety Board over the past 5 years and at present manages investigations relating to railroad, marine and aviation incidents. In addition, as in the present case, she is also employed in a consulting role as a road safety investigator in relation to human factors. She was qualified as an expert to provide opinion evidence of human factors in accident reconstruction. Dr. Rudin-Brown delivered a report dated June 7, 2018 which is 3 days after this trial commenced.

[154] Dr. Rudin-Brown testified that her role, among others, is to identify the human factors involved in this collision and determine the extent of their influence on driver performance.

[155] Dr. Rudin-Brown opines that there were two human factors that were likely to have contributed to the collision of October 2, 2015 namely:

1. Driver fatigue;

2. Pedal misapplication and unintended acceleration.

Driver fatigue

[156] Dr. Rubin-Brown testified that fatigue can affect human performance. Fatigue is related to the amount and quality of sleep obtained and an individual's need for sleep is biological in nature. Consequently, it cannot be governed by, for example, characteristics of personality, intelligence, education, training, skill or conscious motivation.

(a) Micro-sleeps and "Driving without awareness"

[157] Dr. Rubin-Brown defined micro-sleeps as uncontrollable sleep periods of short duration of which a person is often unaware. She testified that studies show that micro-sleeps tend to occur during monotonous tasks, such as when driving long distances. It is questionable (according to one study) whether people are always aware of whether or not they have experienced a micro-sleep, or if they can accurately predict when a micro-sleep is going to occur. Dr. Rudin-Brown testified that while falling asleep represents the most extreme consequence of fatigue, other related driver factors can be exacerbated when a person is fatigued. One of these is called "driving without awareness" (DWA). She states that DWA illustrates the ability to perform actions without consciously thinking about them. While DWA can occur in non-fatigued drivers under monotonous conditions, it is more likely to occur when a driver is fatigued.

[158] The research literature referenced by Dr. Rubin-Brown indicates that the difference between DWA and micro-sleeps was the open or closed state of the driver's eyes. However other literature indicates that both were observed during testing. Subjective alertness levels correlated with the occurrence of micro-sleeps, but less strongly with the occurrence of DWA episodes. The research authors conclude that DWA represents an intermediate phase between wakefulness and severe sleepiness and that DWA often precedes micro-sleeps.

(b) Circadian rhythm

[159] Dr. Rubin-Brown testified that the time of day has a strong effect on an individual's alertness and performance due to changes in body's physiology that are synchronized to a daily (circadian) rhythm. The body is physiologically ready to sleep at night. Therefore, because of circadian rhythm, overall performance and cognitive functioning are at their worst during what is called the "circadian rhythm dip" when the risk of motor vehicle accidents attributed to the driver having fallen asleep peaks between about 11:00 pm and 8:00 am. This pattern occurs even in the absence of fatigue.

(c) Regulation of hours of work and rest

[160] To limit the risk of fatigue in commercial vehicle drivers, Dr. Rudin-Brown testified that Ontario, like many other jurisdictions, has implemented hours of service legislation. Ontario Regulation 555/06 of the Highway Traffic Act provides that commercial drivers are limited to 13 hours of driving, and 14 hours of on-duty time per day and drivers must have at least 10 hours off-duty per day. There is a maximum of 70 hours per week of driving and on-duty time and there must be 36 consecutive hours of off-duty time in order to reset the 7 day cycle.

[161] After reviewing the OPP Collision Reconstruction Report and the examination of the accused's log book by the police for the two week period leading up to the collision the conclusion reached is that Mr. Saini worked between 54 and 60 hours in the 7-day period leading up to the accident and between 9 and 11.5 hours on the day of the collision.

(d) Chronic kidney (renal) disease

[162] Dr. Rubin-Brown testified that she reviewed Mr. Saini's medical file from Dr. Patel which includes notes and biochemistry test results that indicate that Mr. Saini was experiencing advanced, chronic kidney disease at the time of the collision. She reviewed and made reference to a handwritten note of Dr. Patel, June 29, 2015 indicating "Renal failure progressive." She also referenced the July 24 blood and urine analysis of June 30, 2015 which indicated high readings for renal disease. Dr. Rubin-Brown cited the Kidney Foundation of Canada and the various stages of renal disease based on the glomerular filtration rate (GFR) and while no objection was taken, I nevertheless find that she is not qualified to give a medical opinion on this issue. In any event, there is no dispute in the evidence that Mr. Saini had advanced renal failure at the time of the collision, but according to the testimony of Dr. Patel, this advanced renal disease had "stabilized" at the time of the collision.

[163] Dr. Rudin-Brown did reference other Canadian medical standards that drivers with advanced chronic renal disease "are at a significant risk for cognitive impairment that could impair their functional ability to drive."

[164] Dr. Rudin-Brown noted that the "Medical Examination Report by a General Practitioner" form signed by Dr. Yee on July 22, 2015 did not include an entry under box 10 for "Other diagnosis" including "dialysis/kidney failure."

(e) Obstructive sleep apnea

[165] Dr. Rudin-Brown testified that obstructive sleep apnea (OSA) is a medical disorder caused by partial or complete obstruction of airflow through the pharynx during sleep. She referenced the overnight sleep study conducted by Dr. Shapiro but only for April 10, 2018, wherein Mr. Saini was diagnosed with "moderate" OSA. She also relied on a study which concluded that there is a significant correlation between chronic kidney disease and OSA.

Dr. Rudin-Brown's Conclusions on Risk Factors for Fatigue likely present on October 15, 2015

[166] Based then on her analysis of studies, Dr. Rubin-Brown opined that Mr. Saini likely had a "significant number of risk factors for fatigue" present at the time of the collision which are also "in line with an accident scenario involving driver fatigue." These include:

(a) Challenging Work Schedule.

In the 7 days prior to the collision Mr. Saini had worked at least 54 hours. On October 2, 2015 he had worked at least 9.1 hours. While this met the hours of work and rest regulations under the Highway Traffic Act "this schedule could be considered challenging for any driver."

(b) Circadian timing

The collision occurred at 10:30 pm which was half an hour before the beginning of the nighttime circadian dip.

(c) Age

Since Mr. Saini was 72 years of age at the time of the collision, this would have placed him at an increased risk of fatigue earlier in the circadian cycle compared to younger people.

(d) Medical condition---advanced kidney disease.

Mr Saini was "suffering from borderline end stage kidney disease at the time of the accident that was not being treated. One of the most common symptoms of late-stage kidney disease is fatigue/lack of stamina."

(e) Obstructive sleep apnea

"It is possible that Mr. Saini was suffering from moderate OSA at the time of the accident which would have increased his level of fatigue."

(f) Task monotony.

Mr Saini was familiar with the highway in the area of the collision as he drove that route regularly. According to his daily log book entries from "September 26 to October 2, 2015 Mr. Saini travelled past the area heading west 3 times prior to the accident. It is likely that he had passed through that area many times previously." Therefore the monotony was a risk factor.

Pedal Misapplication

[167] The second human factor formulated by Dr. Rubin-Brown is that Mr. Saini depressed the accelerator instead of the brake pedal after the collision with the Ford Fiesta. Again relying on studies, she testified that pedal misapplication leads to unintended acceleration and has been identified as a contributing factor in accidents involving heavy vehicles. One of the "primary sources" of variability in pedal application (or misapplication) is "time available." Time pressure is associated with more errors in pedal application. "Faster movements to contact the brake pedal are likely to result in increased variation in the movement. This is particularly relevant when a driver makes a hurried braking response."

Conclusions reached by Dr. Rudin-Brown

[168] Dr. Rudin-Brown opines, from a human factors perspective, that the dynamics of the Saini transport in the collision sequences as recorded by the transport's HVEDR and as documented in the OPP Collision Reconstruction Report "are suggestive of an inattentive driver experiencing a late panic attack and subsequently a pedal misapplication and unintended acceleration". Since Mr. Saini did not report seeing any construction signs or stopped traffic on approach to the collision, suggests that he "was experiencing a period of driving without awareness (DWA) in the seconds, or even minutes, preceding the accident." This DWA "would be more likely to occur in a driver who is experiencing fatigue and when the driving is monotonous, two conditions that were present at the time for Mr. Saini."

[169] Dr. Rudin-Brown next opines that in the moments immediately prior to the impact with the left rear corner of the Ford Fiesta, Mr. Saini "very likely" experienced a micro-sleep. She opines that the initial steering data to the left and hard application of the brake at 1.5 seconds immediately preceding the impact occurred when Mr. Saini "snapped awake milliseconds before striking the (Ford) Fiesta." With very limited time to react, she opines that the accused moved his foot towards the brake pedal. Then Dr. Rudin-Brown states that the collision with the Ford Fiesta was severe "and would likely have been physically jarring and may have caused Mr. Saini to be jostled in his seat, potentially dislodging his right foot from the brake pedal and causing it to move to the accelerator (at 1.75 seconds post impact.)" Then Dr. Rudin-Brown opines that panic would have caused Mr. Saini "to try to apply even more hard-braking by pressing more on the "brake pedal" which "was actually the accelerator pedal, in what was a clear example of pedal misapplication."

[170] Dr. Rudin-Brown, based on her knowledge of the research literature as well as a review of the documentation, came to the opinion that "Mr. Saini experienced a micro-sleep immediately before the accident, which caused him to not detect the slowing vehicles ahead."

As Mr Saini woke up suddenly, he panicked and tried to avoid the impact by steering left and applying the brakes. The hard-braking and impact with the Ford Fiesta caused a reduction in speed of approximately 17.6 km/h in 0.75 seconds and this deceleration and movement "could have jostled Mr. Saini in his seat causing his foot to slip from the brake to the accelerator" without realizing what had taken place.

Cross-examination of Dr. Rudin-Brown

[171] In cross-examination Dr. Rubin-Brown testified that, as the research literature indicates, driver fatigue, driving knowing you are tired is risky behavior. Also, if a person knows that he has risk factors for fatigue and drives is risky behavior. She agreed, that at the time of the collision, Mr. Saini was aware that he had kidney disease. She stated she does not know how much the accused was aware of fatigue and tiredness as being associated with kidney disease. In her opinion, having regard to Mr. Saini's age, she felt that he was subjecting himself to a challenging work schedule causing him to be fatigued.

[172] Dr. Rudin-Brown testified that the medical records indicated that Mr. Saini had advanced kidney disease. She was not aware that on June 8, 2015 Mr. Saini brought his medical waiver report form to Dr. Patel. She did note that Dr. Yee signed the medical release form July 22, 2015 and the fact that it made no reference to advanced kidney disease is significant.

[173] In cross-examination, Dr. Rudin-Brown testified that research defines a "micro-sleep" as a momentary lack of consciousness. She agreed that a "micro-sleep" would not occur if a driver went from the brake to the accelerator or when negotiating a curve in the roadway. She agreed with the opinion of Dr. Shapiro, that Mr. Saini did not have a "micro-sleep" as he travelled in the curve which immediately preceded the collision with the Ford Fiesta.

[174] Dr. Rudin-Brown testified that fatigue causes a number of impairments including problem solving, memory and reaction time. In relation to reaction time a person can be challenged, depending on the stimuli that a person is exposed to which can "draw out" the person otherwise unaware. She acknowledged that brake lights, depending on how many and how long engaged would be a stimuli that could "draw out" a person from a state of unawareness to a state of awareness. While there is no research with respect to large digital signs she testified that a sign such as the large digital sign on a trailer ("two lanes blocked") just east of the Brock Street Bridge you would expect a driver to notice. Similarly, a series of flashing lights as were present in the construction zone is the type of stimuli which would "draw out" a person from a state of unawareness to a state of awareness.

[175] Dr. Rudin-Brown premised her report and testimony on the basis that Mr. Saini had 8 hours of sleep October 1-2 2015. She was unaware, until cross-examination, that Mr. Saini had approximately an additional 5 hours of sleep while waiting for his shipment to be loaded on a trailer on October 2, 2015. At this point in her evidence, in what I perceive as defensiveness and lack of objectivity, Dr. Rudin-Brown, faced with this "new information" of the hours of sleep, countered that a person who has a diagnosis of sleep apnea does not experience restorative sleep. Whether she was qualified, she nevertheless opined that a person such as Mr. Saini who had 15 hours of sleep in a 24 hour period is descriptive of a person who has sleep apnea. Not much turns on this other than to note that it was obvious that Dr. Rudin-Brown was relying on the medical diagnosis of Dr. Shapiro and the two sleep studies as well as the two MWT studies, which became available the day before she testified.

[176] Dr. Rudin-Brown testified that there was no scientific literature or research she is aware of that inattentive driving combined with a micro-sleep leads to a false recollection of events of a collision. The testimony of the accused was put before her, wherein he stated he was travelling behind the "Gibson" truck which suddenly put on its brake, causing a car, travelling between the "Gibson" transport and the Saini transport, to strike the "Gibson" transport. Yet the undisputed collision reconstruction evidence is that the "Gibson" transport had been stopped for 1 ½ minutes. Dr. Rudin-Brown's opinion, based on those set of facts, is "that a micro-sleep was an unlikely cause of the events." She further acknowledged that she has to rely on Mr. Saini telling the truth of his version of the events in addition to the police report.

[177] In cross-examination Dr. Rudin Brown acknowledged that the only way to explain pedal misapplication is if something caused the foot to come off the brake and on to the accelerator. She agreed that the reconstruction analysis is that the first action was the application of the brake by the accused which slowed the Saini transport by approximately 20 km/h. Then the analysis indicates that the accused was not on the brake for 1.75 seconds and then the triggering event occurred followed by the application of the accelerator pedal. Her conclusion is that a "jostling" of Mr. Saini occurred and was the "triggering event" leading to the pedal misapplication. However, Mr. Saini was explicitly asked if he was "jostled" in his driver's seat and his answer was "No." Mr. Saini's testimony was that he had put his foot on the brake prior to the impact with the Ford Fiesta, he was not jostled, and his foot remained on the brake the whole way. Therefore, the accused was not being truthful in his account of how this collision occurred. Confronted with this incongruity, Dr. Rudin-Brown countered this by stating that the reconstruction evidence of the Saini transport veering left after impact with the Ford Fiesta could "possibly" cause a jostling leading to pedal misapplication. She testified that while a person might lack some ability to recount an event exactly, it is unusual for a person not to know what happened. Finally, she acknowledged that the studies available indicate that the prevalence of pedal misapplication in collisions is less than 1%.

Testimony of the accused relating to the evidence of Dr. Shapiro and Dr. Rubin-Brown

[178] A summary of the testimony of Mr. Saini relevant to the opinions of Dr. Shapiro and Dr. Rubin-Brown is as follows:

(1) He steadfastly denied, in his testimony at trial and his statement to police, that he was tired in any manner. When asked, if on the date of the collision he fell asleep he was adamant "no not at all."

(2) He testified that he never felt sleepy or fatigued while driving on October 2, 2015.

(3) He never sought out medical attention for sleepiness or fatigue.

(4) He testified that he had never experienced the common occurrence of "nodding off" while watching TV or reading a book. The "head bob" from awaking suddenly is not a concept he is familiar with.

(5) There was no pedal misapplication. He applied the brake before the collision and remained on the brake throughout to the point of final rest.

(6) He was not jostled in his seat as a result of the impacts.

(7) He never made a complaint to Dr. Patel or any other doctor including Dr. Shapiro of being sleepy or fatigued.

[179] I have made several references throughout these reasons to Mr. Saini's statement to the police and in particular that he was not tired at the time of the collision. However, I accept the fact that the accused was under no obligation to tell the police anything.

[180] Therefore, there is no subjective complaint of sleepiness or tiredness by Mr. Saini, at the scene of the collision or at trial, to his family physician, or during the medical testing or indeed in any of his twelve years of truck driving in Canada.

[181] I find that Dr. Rudin Brown appears in her evidence to accept or rely on Mr. Saini's assertion that he saw no construction signs approaching the collision as evidence that he was in a "micro-sleep." However, I have rejected Mr. Saini's evidence and therefore the factual underpinnings for her opinion is further undermined.

[182] The objective scientific test results in a finding that the accused is "not abnormally sleepy."

[183] The MWT test designed to test a person's ability to remain awake is quite relevant to the issue in this proceeding. On this test, the accused scored that he could consistently remain awake despite being placed in a dim room and no activity to occupy his mind. The timing of the two MWT tests is cogent. These tests were done immediately after an over-night sleep study wherein Mr. Saini was confirmed to have had moderate sleep apnea. While the testing took place in April and June 2018 both Dr. Shapiro and Dr. Rudin-Brown presumed that the accused actually had sleep apnea at the time of the collision. I accept that the accused likely had sleep apnea at the time of the collision. However, given that the testing objectively shows that the accused's sleep apnea did not interfere with his ability to stay awake on the dates of testing in April and June 2018, I find that it is a reasonable inference that Mr. Saini's sleep apnea on October 2, 2015 also did not interfere with his ability to stay awake.

[184] There is no dispute on all the evidence, including the reconstruction expert evidence, that immediately prior to the collision site (as depicted in pg. 8 of the Collision Reconstruction Report and exhibit # 16 (a) a police aerial photograph taken October 3, 2015) is a curve to the left. The evidence of both Dr. Shapiro and Dr. Rubin-Brown is that it would be impossible for Mr. Saini to negotiate this curve on the highway while asleep.

[185] All the civilian witnesses, but for the accused, testified that there was stopped or slowing traffic ahead across all 3 lanes of Highway 401 westbound. Downloaded data also indicates that the stopped traffic was occasionally inching ahead. I conclude that a reasonable inference to be drawn is that these brake lights would have been visible prior to and from within the curve.

[186] I find on all the evidence that since the accused could not have been micro-sleeping through the curve. I find that the expert evidence of a "micro-sleep" is speculative at best and unsupported by any relevant evidence. The subjective evidence of the accused also does not support a "micro-sleep". After considering all the evidence, I reject the expert evidence that a "micro-sleep" occurred and it does not leave me with a reasonable doubt.

[187] There is then the issue of "driving without awareness (DWA)." Dr. Rudin-Brown opined that Mr. Saini was likely driving without awareness "in the seconds or even minutes" preceding the collision. However, the objective evidence demonstrates otherwise. Dr. Rudin-Brown testified that with flashing lights, arrows, brake lights and signs would likely draw a person out of a state of DWA into a state of awareness. She qualified this as dependent upon the familiarity or predictability of the changes to the roadway.

[188] Dr. Rubin-Brown testimony also related to construction signs and DWA. In relation to the long standing construction signs akin to what the witness Mr. Milik discussed as the permanent "long-term construction plan" Dr. Rubin-Brown testified that these type of signs would not arouse someone from driving without awareness. However, the large LED sign east of Brock Street which was observed by a significant number of drivers travelling westbound, or the light up arrows with flashing lights, or the lights on the tailgates of the crash trucks would all tend to arouse someone from driving without awareness.

[189] Similarly, where there are flashing lights from brakes or 4-way flashers on vehicles and transports as a result of vehicles moving slowly or "inching" forwards would also be the kind of flashing stimuli which one would expect to bring someone out of DWA.

[190] The evidence satisfies me, beyond a reasonable doubt, that the curve that Mr. Saini negotiated immediately prior to the collision site demonstrated that the accused was not micro-sleeping. Further, prior to the curve and while negotiating the curve Mr. Saini was in a position to see all the flashing brake lights of stopped vehicles and/or slowing vehicles inching forwards.

[191] The accused testified that he knew this area was a construction zone but he did not see any sign. It wasn't signs that told him he was in a construction area rather he stated "on previous trips I was aware that a construction is taking place in that area."

[192] The accused further testified in cross-examination, that on approaching what he knew was a construction area his foot was on the brake before any vehicle collisions.

[193] There are a number of shortcomings in Dr. Rubin-Brown's opinion evidence. It was apparent from her cross-examination, that she rendered her opinion without considering the geographical set-up of the collision site. She testified that she was unaware of the detailed construction plan and she specifically did not consider the nature of the curve in the road. She also did not know that the accused testified that he specifically knew he was entering a construction area and therefore as the driver of a loaded transport he testified that he needed to have increased attention or a heightened awareness of the traffic and movements in the area.

[194] Dr. Rubin-Brown's final conclusion was that the accused must have been sleepy at the time of the collision; that fatigue contributed to driving without wakefulness and a micro-sleep occurred. At the time that Dr. Rubin-Brown wrote her June 7, 2018 report, she was unaware of Mr. Saini's testimony that, in addition to the sleep the night before the collision, he had napped from approximately 9:30 am to 2:20 pm the day of the collision. She was aware of the diagnosis of sleep apnea by Dr. Shapiro in April 2018 and to which she commented: "it is not known whether he suffered from OSA at the time of the collision."

[195] When Dr. Rubin-Brown was made aware of the new evidence of Mr. Saini sleeping an additional 5 hours on October 2, 2015, her response was to defend her original opinion stating "if he woke up 80 times in an hour that entire time, it's not going to be like someone without that obstruction." There was certainly no evidence from Mr. Saini or Dr. Patel even remotely suggesting that the accused "woke up 80 times in an hour" or that he had any symptoms of sleep apnea. The accused had medical appointments with Dr. Patel post-collision yet there was no evidence that he reported fatigue or sleepiness to Dr. Patel before or after the collision.

[196] The duty of an expert witness is to provide an opinion to the court that is impartial, independent and without bias. (White Burgess Langille Inman v. Abbot and Haliburton Co. 2015 SCC 23, [2015] S.C.J. 23 at para 32.) I find it troubling that Dr. Rubin-Brown, stating first that Mr. Saini may not have even suffered from sleep apnea at the time of the collision, when confronted with new and relevant information, refused to acknowledge its impact on her opinion. I find that her response to questions asked in relation to this issue was not impartial in the sense that it reflects an objective assessment of the questions at hand.

[197] The testimony of OPP Officer Zafar Kazmi, who attended at the collision scene and took a statement from Mr. Saini is that the accused appeared sad when he spoke to him. Officer Kazmi testified that he did not receive any information from the accused that he had fallen asleep. Further, Officer Kazmi testified that at no point in the interview for a statement did Mr. Saini appear tired or fatigued and there were no gaps in the accused's memory concerning the details of the collision.

[198] To suggest that Mr. Saini was sleepy and driving unaware, that he was tired and fatigued, as the defence experts suggest, just does not square with the viva voce testimony or the objective testing. Significantly, Dr. Shapiro's administration of the MSLT and MWT demonstrated that on two separate occasions Mr. Saini was not abnormally sleepy and had the capacity to consistently stay awake. In cross-examination, Dr. Shapiro stated that there are many causes of sleepiness, drowsiness, including renal failure with fatigue. He testified that chronic renal failure has no effect on the tests he administered.

[199] Dr. Shapiro testified that there is no subjective evidence or indicia of sleepiness involving Mr. Saini. Dr. Shapiro nevertheless maintained that Mr. Saini was a "sleepy person" and he has "sleepiness but an ability to stay awake." The objective testing confirms Mr. Saini's ability to stay awake.

[200] I also find Dr. Shapiro's testimony to be troubling and lacking in reliability as it related to material issues. An example of this is that Dr. Shapiro having acknowledged and agreed that Mr. Saini could not have lapsed into a "micro sleep" while he negotiated the curve in the road; nevertheless, he opines that Mr. Saini experienced a "micro sleep" in the period after coming out of the curve and up to the point when he applied the brakes (which was 1.5 seconds before impact). In coming to this conclusion Dr. Shapiro testified:

So, I am looking at plausible explanations and the more likely explanation is that there was a micro-sleep just before the collision.

[201] What must be kept in mind is that the accident reconstruction report (Exhibit #15 pg.9) and the helicopter photos taken of the collision area on October 3, 2015 establish that the impact with the Ford Fiesta occurred at the approximate end of the curve. Therefore, this evidence further undermines any reasonable inference that a "micro-sleep" occurred.

[202] Dr. Shapiro, as an expert giving opinion evidence professed not to know "any of the minutia" (as he put it) of the various lights on signs and crash trucks or brake lights of vehicles ahead. He stated that he did not know about any of the minutia "beyond the scope that he (the accused) had a micro-sleep." In cross-examination Dr. Shapiro agreed that if there were lights and subjective knowledge that he was in a construction zone, he could not tell if there was a micro-sleep. Dr. Shapiro testified that he based his opinion on his "own experience" that the most likely cause of the accident was a micro-sleep. It is acknowledged that Dr. Shapiro has a great deal of experience and has published papers on the causes of motor vehicle and transport collisions in relation to sleep apnea and sleepiness, nevertheless I reject his opinion that a "micro-sleep" occurred. There is no subjective evidence or objective testing results supporting Dr. Shapiro's conclusion that a micro-sleep occurred. It is speculative to suggest a micro-sleep occurred. Based on the analysis of all the evidence outlined previously including the testimony of Dr. Shapiro and Dr. Rudin-Brown. The opinion of a "micro-sleep" in relation to all the evidence considered as a whole, while proffered as "a plausible explanation", nevertheless is speculative at best. As will be discussed, I find that the cause of the October 2, 2015 collision was prolonged driver inattention on the part of the accused. I find that in coming to the conclusion that a "micro sleep" occurred at that point at the end of the curve, Dr. Shapiro was providing anecdotes gathered from prior experience. The Ontario Court of Appeal in R. v Shafia 2016 ONCA 812, [2016] O.J. 5627 at para. 243 has held:

Experts may not give anecdotal evidence gathered from prior experiences in proffering their opinion about conduct on a particular occasion. The evidence lacks legal relevance and is apt to engender significant prejudice, especially when adduced to rebut a defence.

[203] There is no evidentiary foundation for the opinion of Dr. Shapiro (which I find was adopted by Dr. Rubin-Brown) that Mr. Saini experienced a "micro-sleep" for a very brief period driving out of the curve and before the collision. There was no evidence of Mr. Saini reporting tiredness or fatigue to Dr. Patel at any time before or after the collision of October 2, 2015. There is no evidence of treatment of the accused for "sleep-apnea" at any time. Dr. Shapiro opined that Mr. Saini had "moderate sleep apnea" in 2018 and most likely in 2015. However, the testimony was that many people are not aware that they have sleep-apnea and such seems to be the case with Mr. Saini. The objective evidence from the tests conducted in April and June 2018 is that Mr. Saini has moderate sleep apnea but he has a demonstrated ability to stay awake.

R. v. W.(D.)

[204] The defence submits that the R. v. W.(D.) analysis ought to apply particularly as it relates to the defence expert's testimony.

[205] A recent decision of the Ontario Court of Appeal in R.v. Fogah, 2018 ONCA 564 outlines the governing legal principles related to R. v. W.(D.) and that "the main point is the lack of credibility on the part of the accused does not equate to proof of his or her guilt beyond a reasonable doubt." (R.v. J.H.S., 2008 SCC 30, at para. 13). In R. v. Van, 2008 ONCA 383, at para.19 the Court held "at the second and third stages of the W. (D.) analysis the jury was to consider, in addition to the evidence of the accused, all of the evidence to determine whether it was left with a reasonable doubt." The Court in the R. v. Van case opined that circumstances might require expanding the second and third stages to include not only the evidence of the accused, but "any evidence called by the defence capable of raising a reasonable doubt." (paras. 17 and 19).

[206] In R. v. Cyr, 2012 ONCA 919 paras. 50-53, the Court of Appeal stated:

The W. (D.) instruction, or its functional equivalent, is not limited to an accused's testimony or statement admitted at trial, rather it extends to other exculpatory evidence that emerges during trial proceedings.

The purpose of the W. (D.) instruction or its functional equivalent is to ensure that the jury understands how to apply the burden of proof to the issue of credibility.

[207] The burden of proof remains on the Crown throughout the trial and it never shifts to the defence. Further the burden of proof requires the Crown to prove every essential element of the offence beyond a reasonable doubt.

[208] Mr. Saini gave a statement to the police at the time of the collision and he testified at trial. Defence counsel invited this Court to "disregard" the accused's statement and his testimony at trial. It was submitted by the defence that Mr. Saini in his evidence and statement as to how the collision occurred was "demonstrably wrong in his recollection." It was further submitted by the defence that Mr. Saini's recollection does not accord with the physical evidence and that the Court should accept the physical evidence and disregard Mr. Saini's evidence that he had to stop suddenly as a result of an impact with a car in front of him striking the back end of a truck. The position of the defence is that while Mr. Saini's recollection of how the collision occurred is to be ignored, nevertheless, the rest of his testimony was credible.

[209] The defence asks the Court to apply the W. (D.) analysis and consider the defence evidence as a whole, including Mr. Saini's evidence "on matters other than the time immediately prior to the accident." (para. 18 of defence written summary of submissions). In oral closing submissions the defence stated that it was seeking a W. (D.) analysis in relation to a reasonable doubt arising from the evidence of the two defence experts (Dr. Shapiro and Dr. Rudin-Brown).

[210] The Crown in closing submissions correctly stated that Mr. Saini's evidence and statement to the police is not to the effect that he did not know what happened. The accused in his statement to the police and in his testimony at trial fabricated a story and blamed another driver of a vehicle for causing the collision. As noted by the Crown, the accused in fabricating a story of how the collision took place, leaves no explanation for how he failed to brake until 1.5 seconds before the impact of his transport with the Ford Fiesta and failed to see the directional construction signs and lights including the brake lights of slowing or stopped vehicles.

[211] Therefore, even with the defence conceding that the evidence of Mr. Saini as to how the collision occurred should be rejected and that the "objective scientific evidence" of the collision reconstruction expert should be accepted, does not bring an end to the matter. I do find that Mr. Saini's statement and testimony of how the collision occurred was not even remotely supported by the objective scientific evidence, the accident reconstruction expert evidence or the accounts provided by a substantial number of witnesses. Therefore, I find that in terms of the first stage of the W. (D.) analysis I do not believe Mr. Saini's evidence or his statement to the police that he did not commit the offence of dangerous driving. The testimony of Mr. Saini then in context of all the other evidence does not leave me with a reasonable doubt. However, even after rejecting the evidence of Mr. Saini on how the collision occurred and notwithstanding that it does not leave me with a reasonable doubt, it is necessary to review the rest of the evidence and based on the evidence that the Court does accept, to determine if the Crown has proven Mr. Saini's guilt beyond a reasonable doubt.

[212] Therefore, in applying the W. (D.) analysis, it is necessary to consider all the rest of the evidence with a focus on the testimony of Dr. Shapiro, Dr. Rudin-Brown and Dr. Patel and whether their evidence raises a reasonable doubt. If the combined effect of the expert's testimony, and the testimony of Dr. Patel leaves me with a reasonable doubt, I must acquit. Even if I entirely reject the accused's evidence (which I do) I must consider the testimony of the experts and Dr. Patel to determine whether it leaves me with a reasonable doubt.

[213] For the reasons detailed previously, I reject the testimony of Dr. Shapiro and Dr. Rudin-Brown that the accused experienced a "micro sleep" or that he was fatigued or sleepy or "driving without awareness (DWA)" While I accept that the accused likely had moderate sleep apnea at the time of the collision, the condition did not cause the accused to be sleepy or fatigued. The objective medical evidence was that the accused was able to maintain wakefulness while driving. There is no subjective evidence or indeed any evidence to support the expert opinions of a "micro sleep", driving without awareness or the accused being fatigued or sleepy. There is no evidence supporting a pedal misapplication.

[214] The defence in oral submissions, buttressed by written submissions, in addition to relying on the expert evidence of a "micro-sleep" then took the position that "undiagnosed sleep apnea in combination with the known renal disease is what unbeknownst to Mr. Saini put him in a situation where he could have an intrusive sleep disorder and decline in mental sharpness that caused the accident." Therefore, the defence position is that "an intrusive sleep disorder would take away the necessary mens rea of the offence." (Paras. 47-50 of defence written submissions.) This secondary position of the defence is not supported by the subjective or objective evidence which I do accept as reliable. Mr. Saini testified that he was told by Dr. Patel in June 2015 that he had progressive renal disease, and that he was told to slow down his driving workload. Despite receiving this advice from his doctor he continued to drive shifts in his usual pattern as he stated he did not feel tired, fatigued or sleepy. I reject the secondary position advanced by the defence.

[215] Therefore, based on the analysis above, I find that the expert opinions of Dr. Shapiro and Dr. Rudin-Brown and Dr. Patel do not raise a reasonable doubt and I reject the opinions they proffered.

Analysis of the Mens Rea

[216] To determine the mens rea analysis in dangerous driving, I have reviewed the applicable principles of law previously outlined and I have followed the Supreme Court analysis in R. v. Roy 2012 SCC 26 at para 28 states:

The focus of the mens rea analysis is on whether the dangerous manner of driving was the result of a marked departure from the standard of care which a reasonable person would have exercised in the same circumstances (Beatty, at para. 48). It is helpful to approach the analysis by asking two questions: The first is whether in light of all the relevant evidence, a reasonable person would have foreseen the risk and taken steps to avoid it if possible. If so, the second question is whether the accused's failure to foresee the risk and take steps to avoid it, if possible, was a marked departure from the standard of care expected of a reasonable person in the accused's circumstances.

[217] A re-statement of the law as outlined in R. v. Roy, is the Ontario Court of Appeal decision in R. v. Burger, 2017 ONCA 101 at para 33:

When considering the mens rea element, the court applies a modified objective standard. That is, the court examines all the circumstances and asks whether a reasonable person placed in the same circumstances would have foreseen the risk and 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 care expected of a reasonable person in all of the circumstances such that an inference of fault from the manner of driving is appropriate (emphasis added).

[218] As in the present case, crash data retrieval was available in the Burger case. The facts in the Burger case were that the accused while reversing her car in a parking lot, accelerated and crashed into the front entrance of a Costco store. A witness testified that the Burger vehicle reversed unusually fast from the parking spot. The accused testified that her foot on the gas pedal became lodged under the brake pedal as she reversed and this prevented her from stopping to avoid the accident. The accused testified that she tried to steer out of the way of shoppers. She did not try to use her other foot to brake, nor did she try to shift out of reverse, honk her horn or remove her keys from the ignition.

[219] The crash data for the Burger vehicle indicated that the accused had the gas pedal completely depressed both for 5 seconds and again for 1 second prior to the collision, and her car's speed at the time of impact was 46 km/h. The Crown's position was that this crash data showed that the accused's description of the accident made no sense and ought to be rejected. The trial judge made a finding that the accused's account of the collision was incapable of belief. The trial judge did not decide as relevant, whether the accelerator was depressed purposefully or for some unknown reason thinking it was the brake. Rather, the trial judge concluded that the accused's failure to react to the risk she created with evasive or corrective action, within the 5 seconds she had to react, rose to the level of a marked departure.

In all the circumstances would a reasonable person in the same circumstances as the accused have foreseen the risk of striking stopped or slowing traffic in the construction zone and taken steps to avoid it?

[220] The evidence of many of the witnesses is that on October 2, 2015 there was a back-up of stopped or slowing traffic because of two lane reductions on Highway 401 which was visible to a transport travelling westbound after passing the Brock Street Bridge in Whitby. Based on the unchallenged testimony of the accident reconstruction expert, the Saini transport travelling at a crash data speed of 102-104 km/ would take one minute or approximately 60 seconds to travel the distance just west of the Brock Street Bridge overpass to the collision site.

[221] At the Brock Street Bridge is a large LED board indicating that 2 lanes were closed ahead. The evidence establishes that there are 18 orange construction signs, directional or arrow signs and lights. In the one minute before the collision a driver would have passed 14 of these 18 orange construction signs. There was also the brake lights of many slowing or stopped vehicles visible to a transport in that one minute before the collision.

[222] There is significant evidence of a number of civilian witnesses, including transport drivers that they were braked and stopped, slowing or inching forward because of the visible traffic back-up due to lane reductions.

[223] The evidence establishes that the accused negotiated a moderate curve to the left and prior to and while travelling in the curve a driver would have been able to see traffic stopped or slowing ahead.

[224] The Saini transport continued to drive at the stated data download speed of 102.4 km/h until 1.5 seconds prior to the impact with the Ford Fiesta when the brake to the transport was applied. The application of the brake reduced the transport speed to between 83.2 km/h and 102.4 km/h.

[225] The accident reconstruction expert evidence is that the Saini transport, depending on the distribution of the weight of the cargo in the trailer, could have gone from 104 km/h to 0 km/h in 60-63 metres or 4.1- 4.3 seconds.

[226] One would expect a reasonable person in the position of the accused:

(a) To have been looking out the front windshield and looking ahead anywhere from 1-2 km. on a clear night and be alert to the surroundings.

(b) To have observed the orange highway construction signs commencing with the large LED board sign mounted on a trailer and located near the north shoulder of the curb lane just immediately east of the Brock Street Bridge and which had the illuminated message that two lanes were blocked ahead.

(c) To have next observed and comply with the 14 orange construction signs and or flashing arrows from the Brock Street Bridge to the collision site that affect vehicular movement.

(d) To have observed the brake lights of slowing or stopped traffic of a number of vehicles ahead spread across all 3 lanes westbound and visible anywhere from 1-2 km ahead.

(e) To have commenced gearing down a transport; then to apply the brakes to slow down and then bring the transport to a stop.

(f) When travelling in a construction zone, with lane reductions in effect, to be prepared to reduce speed and to expect slowing and/or stopped vehicles as a result of the two lane closures.

[227] I find that a reasonable person would have foreseen the risk of not complying with the signage and by not being alert to slowing or stopped traffic ahead caused by lane closures and would have taken steps to avoid it including a significant reduction in speed, gearing down and braking the vehicle.

Did the accused's failure to do so constitute a marked departure from the standard of care expected of a reasonable person in all of the circumstances such that an inference of fault from the manner of driving is appropriate (emphasis added)?

Marked Departure or Momentary Lapse

[228] The defence submitted that the objective modified test of a marked departure from the standard of care of a prudent driver, is the "real focus" of Mr. Saini's defence. The defence submits that all of the evidence including the expert reconstruction report is that this collision occurred because of "some form of inattention" on the part of Mr. Saini. The issue as delineated by the defence is whether the inattention was a "marked departure" or a "momentary lapse".

Momentary Lapse

[229] The defence, in argument, referenced a number of cases where there was a momentary lapse in attention or which the defence submitted are similar in facts to the present case. A summary of the cases relied on by the defence is as follows.

R. v. Beatty

[230] The defence relies on R. v. Beatty, 2008 SCC 5, [2008] S.C.J. No.5 in relation to the issue of whether "Mr. Saini's inattention" was a marked departure or a momentary lapse. In the Beatty case the Supreme Court of Canada upheld the trial judge's finding that the mens rea of the charges of dangerous driving under s. 249(4) of the Criminal Code had not been satisfied. The facts of the Beatty case were that the accused's truck had suddenly crossed the centre line into the path of an oncoming motor vehicle, fatally injuring all three occupants. Witnesses had observed the accused's vehicle being driven in a proper manner prior to the accident and that the accident happened instantaneously. There was no evidence of speeding or vehicle failure and intoxicants were not a factor. After the accident, the accused stated that he was not sure what happened but that he must have fallen asleep and collided with the other vehicle. The trial judge acquitted the accused on all 3 counts. She found that the test in R. v. Hundal required more than a few seconds of lapsed attention to establish objectively dangerous driving. The trial judge noted that in the absence of something more, the accused's few seconds of negligent driving was insufficient evidence to support a marked departure from the standard of care of a prudent driver.

[231] In the Beatty case (para. 47) the court stated:

In determining the question of mens rea the court should consider the totality of the evidence, if any, about the accused's state of mind…..the mens rea requirement for the offence of dangerous driving will be satisfied by applying a modified objective test. This means that, unlike offences that can only be committed if the accused possesses a subjective form of mens rea, it is not necessary for the Crown to prove that the accused had a positive state of mind, such as intent, recklessness or wilful blindness. Of course, this does not mean that the actual state of mind of the accused is irrelevant……One way of looking at it is to say that the subjective mens rea of intentionally creating a danger for other users of the highway within the meaning of s. 249 of the Criminal Code constitutes a "marked departure" from the standard expected of a reasonably prudent driver.

(para. 48)

However, subjective mens rea …. need not be proven to make out the offence…..Therefore, while proof of subjective mens rea will clearly suffice, it is not essential………The presence of objective mens rea is determined by assessing the dangerous conduct as against the standard of a reasonably prudent person driver. If the dangerous conduct constitutes a "marked departure" from that norm, the offense will be made out. As stated earlier, what constitutes a "marked departure" from the standard expected of a reasonably prudent driver is a matter of degree. The lack of care must be serious enough to merit punishment. There is no doubt that conduct occurring in a few seconds can constitute a marked departure from the standard of a reasonable person. Nonetheless, as Doherty J.A. aptly remarked in Willock "conduct that occurs in a brief time in the course of driving, which is proper in all respects, is more suggestive of the civil rather than the criminal end of the negligence continuum" (para. 31)…..

(para. 49)

If the conduct does not constitute a marked departure from the standard expected of a reasonably prudent driver, there is no need to pursue the analysis. The offence will not have been made out. If, on the other hand the trier of fact is convinced beyond a reasonable doubt that the objectively dangerous conduct constitutes a marked departure from the norm, the trier of fact must consider evidence about the actual state of mind of the accused, if any, to determine whether it raises a reasonable doubt about whether a reasonable person in the accused's position would have been aware of the risk created by this conduct, if there is no such evidence, the court may convict the accused.

R. v. Jiang

[232] A "sleeping case" the defence also relies on is R. v. Jiang 2007 BCCA 270, [2007] B.C.J. No 928 (B.C.C.A.). In Jiang the accused, while driving her family home, on a sunny summer evening, fell asleep and missed a bend in the roadway. Her vehicle mounted the curb and proceeded straight across a sidewalk and through a parking lot, where it struck two children, injuring one and fatally injuring the other. Citing R. v. Hundal 1993 (SCC), [1993] 1 S.C.R. 867 it was noted that Justice Cory stated that the test to be applied for dangerous driving is a "modified objective test." Therefore, Justice Cory (page 886) while stating that an objective test must be applied "it will remain open to the accused to raise a reasonable doubt that a reasonable person would have been aware of the risks in the accused's conduct."

[233] The essence of the decision in R. v. Jiang is found at para. 22:

Accordingly, a sleeping driver is in a state of non-insane automatism and cannot be convicted of dangerous driving while in that state, since such acts are involuntary and cannot form the actus reus of the offence. However, such a driver may be convicted of dangerous driving if the trier of fact is satisfied beyond a reasonable doubt that the driver embarked on driving or continued to drive in circumstances in which he knew or ought to have known that it was dangerous to do so because there was a real risk that he would fall asleep at the wheel.

[234] The defence submits that the Jiang case is similar in facts and therefore is relevant to the issue in the present case. In Jiang a psychiatrist who was accepted as an expert in the diagnosis and treatment of sleep and anxiety disorders, fatigue and sleepiness in the operation of motor vehicles, and disturbances in transition from sleep to wakefulness, opined that the accused was suffering from undiagnosed chronic insomnia at the time of the accident. The psychiatrist testified that the accused responded positively to his treatment. In his opinion the accused was not aware of her sleeping disorder before the accident and that she had experienced an "intrusive sleep disorder" just before she lost control of her vehicle.

[235] Ms. Jiang testified at trial that she felt "a little bit tired" but not sleepy before the accident. She stated she did not think she was in any danger of falling asleep at the wheel. She testified as to a general recollection of the drive and proceeding at a normal speed in the curb lane. Next, she testified that she did not know what happened; that she "felt something unusual, like something hitting something." She testified that "the car was jumping very hard, I could not stop it." She added she could not see the children that were struck.

R. v. Taylor

[236] The defence referenced the decision in R. v. Taylor [2008] O.J. No. 946 wherein an accused was acquitted of dangerous driving causing death, as the evidence overwhelmingly established that he experienced an epileptic seizure which caused the accident. The Crown had not proven beyond a reasonable doubt that it was unreasonable for the accused to be driving a car knowing he had a pre-existing epileptic condition. The testimony established that Mr. Taylor's medication was working, he had not experienced a seizure for almost three years, and he was legally permitted under provincial law to drive a car. As noted in the Taylor case, in R. v. Hundal

Justice Cory considered the situation where a driver without prior warning suffers from a sudden onset of, for example "heart attack, or epileptic seizure or detached retina" as examples of a disease or physical disability that would provide a complete defence despite the objective demonstration of dangerous driving. "In Beatty, the Supreme Court of Canada noted that these were "useful examples" of situations where it would be unjust to enter a conviction and brand the driver as a criminal."(R.v. Taylor para. 10).

R. v. Jones

[237] The defence also referenced and I have reviewed R. v. Jones [2016] B.C.J. No. 1793 (B.C. Provincial Court) wherein the accused was found to have fallen asleep while driving or lost cognition or awareness prior to entering an intersection. It was found that the accused's conduct did not constitute a marked departure from the standard of care.

R. v. Rockwell

[238] I have also reviewed the decision in R. v. Rockwell [2004] A.J. No. 440 (Alberta Provincial Court). The Rockwell case involved an individual whose driving was objectively dangerous. The expert medical evidence was that the accused "is now and has been suffering from a sleep disorder called sleep apnea for many years." The medical evidence was that until the sleep disorder is diagnosed those who suffer from it have no idea of their condition. The evidence further established that sleep apnea increases fatigue and "increases one's susceptibility to motor vehicle accidents" because this sleep disorder can cause "episodes of automatic behavior which can include micro-sleeps….lasting anywhere from 3 to 15 seconds." (para. 12). However, it is significant that in the Rockwell case, the trial judge accepted the medical opinion that Mr. Rockland suffered from sleep apnea; that people are poor predictors of when they are going to fall asleep and that this was an adequate explanation for the accused's evidence that he did not feel fatigued. However, the trial judge stated that in making a finding of inattention leading to an accident could be explained by "automatic behavior brought on by sleep apnea" depended for its persuasive value "on whether I accept the accused's description of what happened just before the accident, the crucial evidence the doctor relied as the basis for his opinion." (para. 18-20). The trial judge then conducted a credibility analysis and found the accused to be a credible witness. However, I find that the "crucial evidence" of the accused providing a truthful account of what happened just before the collision was not provided to this Court or to Dr. Shapiro and Dr. Rudin-Brown. The evidence establishes that Mr. Saini was not simply mistaken or confused in his testimony. I find that the accused deliberately fabricated his account of the events in his statement to the police (as referenced by Dr. Shapiro and Dr. Rudin-Brown) and his testimony to this Court. He deliberately lied to cast blame on another driver and the lie was proven to be demonstrably false. Therefore, I do not find the decision in R. v. Rockwell to be persuasive to the present case.

[239] The defence referenced a number of other cases including cases from the Quebec Court of Appeal applying the test in Beatty and Hundal. I do not find it necessary to detail these additional cases. Some of these additional cases can be distinguished on their facts and others are a repetition of principles already outlined. I do find that the cases cited by the defence are not helpful in the present case to decide the mens rea element of the offence. I find that this is not a case of "momentary" or "mere" inattention. This is a case of a prolonged inattention by a professional driver. There is no evidence nor am I left in a reasonable doubt that the accused fell asleep at the wheel or experienced the sudden onset of a physical disability.

[240] The data download of the Saini transport and the reconstruction expert report and evidence clearly establishes that it was being driven at a speed of between 104 km/h and 102 km/h until 1.5 seconds before impact with the Ford Fiesta when the brake was applied. The evidence establishes that based on the brake force analysis conducted by OPP Officer Frei, that it would require 60 meters – 63 metres (198-207 feet) or 4.1 to 4.3 seconds to bring the Saini transport to a stop with full application of the brakes.

[241] Upon impact with the rear end of the Ford Fiesta, the Saini transport was travelling at a speed between 83.2 km/h and 102.4 km/h. The Ford Fiesta was travelling at an approximate speed of 1.5 km/h

[242] Mr. Saini's testimony is that from the moment he applied his brakes, he never lifted his foot from the brake pedal. The objective evidence is that Mr. Saini's foot was on the brake for 1.5 seconds when it struck the left rear of the Ford Fiesta in the middle lane and the transport then veering into the left or passing lane at which point Mr. Saini was off the brake for a fraction of a second and then on to the accelerator right up to and including the impact with the "Gibson" transport. The sight line analysis is that there was a clear unobstructed view of the collision site with the Ford Fiesta from the Henry Street Bridge westward. It is evident that Mr. Saini both failed to see the risk of traffic ahead being stopped or coming to a stop during lane closures. The vehicle data analysis as well as the testimony of most of the witnesses is that after observing the traffic slowing and stopped ahead they reduced their speed by applying their brakes.

[243] I find on all the evidence that Mr. Saini's driving was a marked departure from the standard of care of a reasonable person in all the circumstances based on the following findings:

(1) the accused failed to see and/or foresee the risk of slowing or stopped traffic ahead with lane closures in effect;

(2) the accused had a clear unobstructed view for at least one minute from the Henry Street Bridge to the point of impact with the Ford Fiesta yet he failed to see the stopped or slowing traffic and take evasive measures including a reduction in speed or braking;

(3) the accused's manner of driving at a speed of 102-104 km/h up until 1.5 seconds before the collision was a grossly excessive speed in all the circumstances including that he knew he was in a construction zone and based on his previous experience driving through that location involved lane closures. The accused's failure to apply the brake, gear down and reduce the speed until 1.5 seconds before impact; the failure to observe traffic stopped ahead and the accused's failure to take steps to avoid it, cumulatively, was a marked departure from the standard of care expected of a reasonable person. I make the following findings in support of the conclusion reached in relation to the second question above:

(a) Mr. Saini testified that he had subjective knowledge that he was in a construction zone with lane closures in progress on October 2, 2015 based on travelling through the same zone eastbound and westbound at night with lane closures on prior occasions.

(b) He was not paying attention to the signs overall and he testified to not seeing them.

(c) He testified that driving a 76,000 lb trailer with cargo required a heightened awareness on his part as the driving and braking of transports is much different than cars. However, the evidence establishes beyond a reasonable doubt that the accused lacked awareness of the risk he created by his own actions.

(d) Despite a clear unobstructed view for at least one minute up to the collision area the accused failed to observe slowing or stopped vehicles. He failed to reduce the speed or slow or brake the transport until 1.5 seconds before impact with the Ford Fiesta.

(e) After striking the Ford Fiesta the accused then moved his foot to the accelerator pedal and continued in the passing lane striking vehicles and then returned to the middle lane striking other vehicles and finally colliding with the rear of the "Gibson" transport.

(f) The failure of the accused to apply the brake after striking the Ford Fiesta was also a significant breach of the standard of care expected of a reasonable person.

[244] I find that the relevant evidence satisfies me beyond a reasonable doubt that there was a minimum of one minute, before impact, for the accused to observe the traffic stopped or slowing ahead due to lane closures and to take appropriate measures. This is not a case of momentary or 'mere' inattention. The accused's failure to reduce the rate of speed of the transport over that time period; his failure to apply the brake of his transport until 1.5 seconds prior to impact; the accused's failure to have foreseen the risk of striking stopped or slowing traffic in the construction zone and taking any steps to avoid it lead me the conclusion that this pattern of driving constituted a significant and substantial period of inattentiveness. This prolonged inattentiveness caused Mr. Saini to be unaware of the traffic slowing or stopped at the collision site. This prolonged period of inattentiveness combined with excessive speed in the circumstances and a failure to apply the brake in a timely fashion was a danger created by Mr. Saini and I find beyond a reasonable doubt that this significant period of inattentiveness combined with his excessive speed in the circumstances, failure to brake in time and failure to keep his foot on the brake constitutes a marked departure from the standard of a reasonable person in all the circumstances and attracts criminal sanction.

[245] I find on all the evidence, after the collision with the Ford Fiesta, and the Saini transport continuing in the passing lane, it is not necessary to decide whether the accelerator was depressed purposefully or for some unknown reason thinking it was the brake. Rather, I find that it is the failure of the accused to react to the risk he created with evasive or corrective action, including a reduction in speed, slowing and timely braking of the transport within the one minute that the accused had to react, which constitutes a marked departure from the standard of care expected of a reasonable person in all the circumstances.

[246] On the modified objective standard, the Court must consider what a reasonable person would do in light of the information available to the accused at the time. This includes subjective knowledge of the construction zone as well as subjective knowledge that there had been lane reductions in the days leading up to the collision. There is also the subjective knowledge of the accused of the inherent risks associated with driving a heavy commercial tractor/ trailer and the need to pay more attention when driving these vehicles in a construction zone.

[247] I am satisfied beyond a reasonable doubt, following the reasoning of the Court of Appeal in R. v. Malkowski [2015] ONCA 887 at para.14, that the evidence in this case meets the legal test for causation. Highway 401 is the major east-west traffic corridor, across the Province of Ontario, for transport and motor vehicles. I find that the collision of October 2, 2015 even at 10:30 pm., it was reasonably foreseeable that traffic ahead would be stopped or slowing to a stop with lane closures taking effect in a construction zone. Legal causation is the inquiry into "whether the accused should be held criminally responsible for the consequences that occurred." Legal causation is "based on concepts of moral responsibility" and informed by legal considerations, such as the wording of the offence-creating provision and the principles of criminal justice such as that the morally innocent should not be punished. (R. v. Nette 2001 SCC 78, [2001] 3 S.C.R.488 at paras. 45 and 83.)

[248] For the reasons detailed, I find that the Crown has proven the mens rea element of the offence beyond a reasonable doubt.

[249] Therefore, based on all the evidence I find that after applying the modified objective standard of the accused's failure to foresee stopped and slowing traffic due to construction and lane closures and his failure to see stopped or slowing traffic combined with his excessive speed in the circumstances and his failure to apply his brakes in a timely manner, slow the speed of the transport and take evasive action is of such a marked departure as to attract criminal liability.

The accused's driving "went beyond negligence or carelessness and reached the level of a marked departure from the standard of care that a reasonable person would show in the same position." R. v. Roy 2012 SCC 26, [2012] 2 S.C.R. 60 at para. 30; R. v. Reynolds, 2013 ONCA 433, at para. 18.

Conclusion

[250] I find the accused Mohinder Saini guilty of the four counts of dangerous driving causing death and nine counts of dangerous driving causing serious bodily injury as detailed in the Indictment. A conviction on all counts on the indictment shall be recorded.

Justice J. Bryan Shaughnessy

Dated: September 14, 2018