Court File and Parties

COURT FILE NO.: 15-R2133 DATE: 2018/11/02

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – DEINSBERG G. ST. HILAIRE Accused

COUNSEL: Julian Daller and Lisa Miles, for the Crown Eric Granger, for the Accused

HEARD AT OTTAWA: October 15-18, 22-25, 29-30

REASONS FOR JUDGMENT

Aitken J.

Nature of the Charges

[1] Tragically, at approximately 5:55 a.m. on June 28, 2015, Andrew Nevin was struck from behind by a Ford F-250 pickup truck while he was riding his bicycle eastbound on the shoulder of Leitrim Road. He died instantly as a result of the extensive injuries he suffered due to the impact of the vehicle and/or his impacting the ground after being thrown from his bicycle following the collision. It is admitted that the Accused, Deinsberg St. Hilaire, was the driver of the pickup truck that struck Mr. Nevin. Mr. St. Hilaire has been charged with the following offences in regard to this incident:

• Operation of a motor vehicle on June 28, 2015 in a manner dangerous to the public and causing the death of Andrew Nevin, contrary to s. 249(4) of the Criminal Code, R.S.C. 1985, c. C-46.
• Failure to stop his vehicle after it struck Mr. Nevin, causing his death, give his name and address, and offer assistance to Andrew Nevin, with intent to escape civil or criminal liability, contrary to s. 252(1.3) of the Criminal Code.
• Obstruction of a peace officer in the execution of his or her duty between June 28 and July 7, 2015, contrary to s. 129 of the Criminal Code.

[2] Mr. St. Hilaire pled guilty to obstruction of a peace officer, but pled not guilty to dangerous driving causing death and failure to stop following the collision.

Sympathy

[3] First, I wish to express to Andrew Nevin’s family and friends just how sorry I am for their loss. A sudden, tragic death like this, leaving so much pain in its wake, must be unimaginably difficult to bear. No court of law can turn back the clock or soften the impact of this tragedy. In fact, the deep sympathy I feel for all of you can play no role in how I approach my task which is to apply the law, as it is expressed in the Criminal Code, in as diligent and fair a way as I can and in accordance with the directions from higher courts.

Basic Criminal Justice Principles

[4] There are certain basic principles of criminal law that I must apply in rendering my decisions in this case.

[5] The first principle is that every person charged with an offence is presumed to be innocent until such time as the Crown has proven his guilt beyond a reasonable doubt.

[6] The second principle is that the burden of proof rests with the Crown to prove each essential element of an offence beyond a reasonable doubt. An accused person is not obliged to prove his innocence.

[7] The third principle is that “beyond a reasonable doubt” is a high standard. It is a doubt that logically arises from the evidence or from the lack of evidence. Proof of probable or likely guilt is not proof beyond a reasonable doubt. If, at the end of this case, based on all of the evidence or the lack of evidence, I am not sure that Mr. St. Hilaire committed a particular offence, I must find him not guilty of that offence.

[8] There are also certain evidentiary principles that must be applied in this case.

[9] Pursuant to the instructions of the Supreme Court of Canada in R. v. W. (D.), [1991] 1 S.C.R. 742, if I believe Mr. St. Hilaire’s evidence that he did not commit the offence charged, I must find him not guilty. Even if I do not believe Mr. St. Hilaire’s evidence, if it leaves me with a reasonable doubt about an essential element of an offence, I must find him not guilty of that offence. Even if Mr. St. Hilaire’s evidence does not leave me with a reasonable doubt about an essential element of an offence, I must convict him of that offence only if the rest of the evidence that I do accept proves his guilt beyond a reasonable doubt.

[10] Much of the evidence in this case is circumstantial. When one or more of the essential elements that the Crown must prove is based on circumstantial evidence, the standard of proof beyond a reasonable doubt requires that the only rational inference that can be drawn from that evidence is that the accused is guilty (David M. Paciocco, and Lee Stuesser, The Law of Evidence, 7th ed. (Toronto: Irwin Law, 2015) at 576). Just to emphasize this, if there is any other rational inference that can be drawn from the circumstantial evidence, then the Crown has not proven this essential element beyond a reasonable doubt (R. v. Griffin, [2009] 2 S.C.R. 42, at paras. 32-33).

[11] The higher courts have also repeatedly instructed trial judges not to make findings of fact based on speculation. A trial judge can only make findings of fact based on evidence and cannot fill in any gaps based on guesswork. The evidence consists of the oral testimony heard in court, admissions, proven out-of-court statements of Mr. St. Hilaire, and documents entered as exhibits. It is not my role to speculate on what other evidence might exist – what other potential witnesses not called might have said about the events of June 28, 2015, what other experts not called might have offered by way of opinion, or what other measurements or calculations not submitted in evidence might have shown. My decision must rest solely on the evidence that was tendered during the trial.

[12] I am emphasizing these foundational legal principles and rules of evidence because, ultimately, after considering all of the evidence, and the gaps in the evidence, I have concluded that the Crown has not proven count one and count two beyond a reasonable doubt. The rest of these reasons will explain why.

Evidence

Video and Photographic Evidence

[13] Videos were tendered in evidence from three traffic cameras: one facing east on Leitrim Road from the intersection of Leitrim and Gilligan Roads (Camera 1); one facing north on Albion Road from the intersection of Leitrim and Albion Roads (Camera 2); and one facing south on Albion Road from the intersection of Albion and Lester Roads (Camera 3). [1]

[14] A photograph book including photographs of the collision scene taken by Sergeant Killeen on the morning of the collision, starting at approximately 8:00 a.m., was tendered in evidence. [2] Sergeant Killeen was able to identify a tire mark on the shoulder of the road near the point of impact near 2570 Leitrim Road that measured 24.93 metres. More will be said of this tire mark later. Gouges and scratches on the shoulder of the road were also captured in the photographs.

[15] Photographs taken for the purpose of a Collision Reconstruction Report prepared by Constable Steve Anderson of the Ontario Provincial Police, were also referred to during the course of oral evidence.

[16] Finally, reference was made during oral evidence to both a Google map and Google overhead view of the area of the collision.

Observations of Other Drivers

[17] At approximately 5:37 a.m. on the morning of June 28, 2015, when Constable Grison was travelling east on Leitrim Road west of Limebank Road, heading to an alarm call, she observed Andrew Nevin cycling in an easterly direction on the paved shoulder on the south side of Leitrim Road. There was nothing abnormal in his manner of cycling. Constable Grison had no difficulty seeing Mr. Nevin.

[18] At approximately 5.48 a.m., when Constable Grison had returned south on Limebank Road and was driving east on Leitrim Road, she again saw Mr. Nevin cycling easterly on the southern paved shoulder of Leitrim Road in the vicinity of Bowesville Road. Again, Mr. Nevin was cycling in a normal fashion and he was easily visible. Constable Grison passed Mr. Nevin and continued in an easterly direction. Constable Grison could not remember whether she saw Mr. Nevin on the east or west side of Bowesville Road.

[19] At approximately 5:45 a.m. that morning, Christian Legare, a paramedic heading to work, was driving easterly on Leitrim Road just west of Bowesville Road. As was normally the case, there was very little traffic on the road at that time. He observed Andrew Nevin riding his bicycle in an easterly direction on the paved shoulder of Leitrim Road. Mr. Nevin did not seem to be in a hurry. Mr. Nevin was wearing dark pants, a dark top, and a dark baseball cap. Mr. Legare had no difficulty seeing Mr. Nevin.

[20] Meanwhile, at approximately 5:55 a.m., Alison Reaume was driving south on Albion Road and preparing to turn right on Leitrim Road. As she was driving toward the intersection, she observed a white pickup truck turning north onto Albion Road from Leitrim Road. According to Ms. Reaume, the truck was going extremely quickly around the corner resulting in the back of the truck fishtailing. Ms. Reaume observed that the traffic light that she was approaching had turned green. She deduced that the white pickup truck had made the turn onto Albion Road on a red light. Ms. Reaume only saw the driver in the vehicle as the pickup truck passed her. The driver, who was a dark-skinned man with short hair, looked, in her words, “terrified”. Ms. Reaume observed debris coming off the back of the truck. There is no issue that the white pickup truck observed by Ms. Reaume was Mr. St. Hilaire’s truck and that the man behind the wheel was Mr. St. Hilaire.

[21] Ms. Reaume turned onto Leitrim Road, travelled in a westerly direction and turned south on Bowesville Road. She did not see a cyclist or a bicycle along this stretch of Leitrim Road. She was unaware that anything was amiss as she passed 2570 Leitrim Road.

[22] Video surveillance footage at 5:55 a.m. from Camera 2 facing north at the intersection of Leitrim and Albion Roads shows Ms. Reaume’s vehicle approaching that intersection while a white pickup truck heads north on Albion Road. When the pickup truck first comes into view, its passenger-side tires are over the fog line on the paved shoulder of Albion Road. The truck is quickly brought into the driving lane.

Observations of Neighbours

[23] In the early morning of June 28, 2015, Paul Brazeau, who lives next door to the west of 2570 Leitrim Road, was lying in bed, awake. He heard a momentary bang that was loud and had a tinny quality. He did not hear anything further, such as brakes, braking, or screeching tires. He went to the end of his bed and looked through the blinds. He could not see anything to the east because there is a bush which blocks his view in the direction of Albion Road. Two cars drove by in an easterly direction, going faster than the posted speed of 50 k.p.h. Both were travelling at a consistent speed and did not slow down or stop. Mr. Brazeau went back to bed, noticing that his bedside clock indicated 5:50 a.m. Shortly thereafter, Mr. Brazeau heard fire trucks and saw that they were on the north side of Leitrim Road opposite his property. He got dressed and went outside, at which point he met his neighbour, Randy May, who lives at 2570 Leitrim Road. Mr. May advised Mr. Brazeau of the collision that had sent Mr. Nevin into the ditch.

[24] Randy May, who has lived at 2570 Leitrim Road for 20 years, woke up at about 5:30 a.m. on the morning of June 28, 2015. He looked out the front of his house and did not notice anything. He went out the back door and along the driveway to where his truck was parked. Mr. May got into his truck, closed the door, and searched for some paperwork he required for his towing business. He was only a few minutes in his truck. It was about 5:45 a.m.-5:50 a.m. at this point. Mr. May did not start the vehicle or turn on the radio. He was not wearing earphones. He did not hear anything out of the ordinary.

[25] When Mr. May was walking back toward the front of his property, he noticed a bicycle lying in the middle of his driveway close to the road. He assumed that someone had left the bicycle there, knowing that Mr. May does metal recovery work. As Mr. May got closer, he noticed that there was a shoe at the back of his son’s car in the parking area in front of the house. He then saw that there was a bicycle seat on the side of that car closest to Leitrim Road, and it had left a mark on the car. As he approached the bicycle, Mr. May saw a hat lying on the paved shoulder of the road, not far from the bicycle. He also noticed debris around the bicycle. The bicycle was completely mangled.

[26] Mr. May looked to the west and noticed gouges on the paved shoulder where the bicycle had been hit. The gouges were closer to the dirt shoulder than to the white fog line separating the paved shoulder from the roadway. Cars were driving by without realizing that anything had happened. It took Mr. May a moment to compute that there had been an accident. When he turned to the east, Mr. May saw Andrew Nevin in the ditch on the east side of Mr. May’s driveway. Mr. Nevin had his arms extended in front of him. His face was on the ground. He had a mark on his back. His eyes were open. He had no vital signs. By this time, other drivers had stopped. Mr. May went into the house and called 911.

[27] Constable Grison was dispatched to the accident scene at 6:03 a.m. and arrived at 6:05 a.m. When she got there, an off-duty firefighter was trying to perform CPR on Mr. Nevin, and Constable Grison provided him with her defibrillator to assist. Emergency services arrived as this was happening.

Evidence of Deinsberg St. Hilaire

[28] The Accused, Deinsberg St. Hilaire, had spent the morning of Saturday, June 27, 2015, preparing for the wedding of his brother, Yuri. Mr. St. Hilaire was Yuri’s best man. At about 11:00 a.m., Mr. St. Hilaire drove his pickup truck to Yuri’s home in Barrhaven. From there, Mr. St. Hilaire and some other members of the wedding party were driven by limousine to a church in Barrhaven for the 2:00 p.m. wedding service. Following that, the wedding party was driven by limousine to the Experimental Farm for photographs and then, at 7:00 p.m., to the Tudor Hall for the wedding reception.

[29] Mr. St. Hilaire’s evidence was that he did not drink any alcoholic beverages over the day of the wedding, prior to attending the reception. At the reception, he only had one glass of wine so that he would have something with which to toast the bride and groom. According to Mr. St. Hilaire, Yuri asked him to be a designated driver to assist in getting the wedding guests staying at their mother’s home in Barrhaven safely back to that residence following the reception. When the reception ended at approximately midnight, Mr. St. Hilaire drove some visiting cousins home to his mother’s home in a vehicle owned by the husband of one of the cousins. That gentleman had had too much to drink to be able to drive safely.

[30] According to Mr. St. Hilaire, once at his mother’s home, he visited with his out-of-town relatives until approximately 4:45 a.m., when he walked over to Yuri’s house, picked up his truck, and headed home. Mr. St. Hilaire’s evidence was that, while he had been visiting with relatives at his mother’s home, he had not had any alcoholic beverages. Furthermore, throughout Saturday, June 27, and into Sunday, June 28, he had not had any prescription or non-prescription drugs of any kind.

[31] According to Mr. St. Hilaire, when he got into his pickup truck to drive the approximately 40 minutes to his home in Hunt Club, he was not feeling unduly tired. He did not feel impaired in any way to operate his vehicle.

[32] After leaving Barrhaven, Mr. St. Hilaire’s route took him north on River Road and then east on Leitrim Road, a road he knew well. There were no other cars on the road at that time. Mr. St. Hilaire’s recollection was that he was driving at approximately 80 k.p.h. along Leitrim Road – regardless of the posted speed limit reducing to 70 k.p.h. near Bowesville Road and then 50 k.p.h. near Gilligan Road.

[33] According to Mr. St. Hilaire, he remembered going through the traffic lights at the Leitrim/Gilligan intersection, but he remembers nothing else until he was awoken by a bang. Mr. St. Hilaire acknowledges that the bang must have been caused by his pickup truck’s collision with Mr. Nevin’s bicycle or by his pickup truck driving over Mr. Nevin’s bicycle.

[34] Mr. St. Hilaire’s evidence was that, at no time, did he see Mr. Nevin or his bicycle – either as he was driving eastward from Gilligan Road, as he was approaching 2570 Leitrim Road, at the time of the collision, or after the collision. According to Mr. St. Hilaire, he was startled awake by the bang. He noticed that the pickup truck was partially on the paved shoulder of the road. He turned the truck back into the eastbound lane. He did not brake. He looked in his rear view and passenger-side mirrors, but he did not see anything amiss. All he saw were some mailboxes on the side of the road. He did not stop the pickup truck to investigate further. Mr. St. Hilaire’s explanation for the collision was that he must have nodded off to sleep at some point shortly after the Leitrim/Gilligan intersection and he only awoke when he heard the bang caused by the collision.

[35] Mr. St. Hilaire continued eastward on Leitrim Road to Albion Road, where he planned on turning left. According to Mr. St. Hilaire, as he approached the intersection, the light turned yellow. He did not want to stop, so he took the turn more quickly than he should have. This resulted in his taking the corner in a wide arc with his passenger-side wheels temporarily crossing the fog line on Albion Road onto the shoulder as Mr. St. Hilaire completed the turn. According to Mr. St. Hilaire, he drove north on Albion Road at approximately 80 k.p.h., turned right on Lester Road, and made his way home.

[36] According to Mr. St. Hilaire, after he parked the pickup truck in his driveway, he checked the front and noticed that his right headlight had been damaged. He did not notice the damage to the hood and fender at the time. He went into his home and went to bed.

[37] According to Mr. St. Hilaire, when he got up at around 2:00 p.m. later that day, he had a closer look at the pickup truck. He observed that the headlight was totally smashed and the hood was dented. Mr. St. Hilaire assumed that he had struck a mailbox. He had his wife drive him in her car down Albion and Leitrim Roads looking to see if there was a damaged mailbox. According to Mr. St. Hilaire, he did not see anything suggesting he had hit a mailbox, and he did not see anything else explaining what had happened.

[38] On Sunday afternoon, Mr. St. Hilaire ordered two new matching headlights from Prime Choice, picked them up the following day, and immediately installed them. His evidence was that he fixed the broken headlight immediately because he could not be driving his work vehicle on the road without a functioning headlight. He did nothing further at that time to deal with the damage to the fender and hood of the pickup truck.

[39] Mr. St. Hilaire took Monday, Tuesday, and Wednesday (Canada Day) off work, even though, as a landscaper and renovator, that was a busy time of year for him. On Canada Day, Mr. St. Hilaire’s wife read something on the news which led her to believe that Mr. St. Hilaire had been involved in a fatal collision when driving home on Leitrim Road in the early morning of June 28, 2015. It was reported that the police were looking for a pickup truck that fit the description of Mr. St. Hilaire’s truck. According to Mr. St. Hilaire, when he heard this, his heart was gripped by fear – for his family and himself. He did not know what to do. Days had passed since the incident and he had taken steps to repair his pickup truck. As a man of colour, he was afraid of how he would be treated by the police if he were to contact them. He felt poorly treated by the police in earlier dealings and attributed that to the colour of his skin. After speaking with his brother, Che, Mr. St. Hilaire decided not to go to the police but, instead, to get his truck repaired.

[40] Mr. St. Hilaire put a tarp over the front of the truck. His brother, Che, arranged for Mr. St. Hilaire’s truck to be repaired at a garage on Boundary Road owned by a friend. Mr. St. Hilaire and Che drove the truck to that location one night. On the instruction of the owner of the garage, Mr. St. Hilaire removed the truck’s licence plates and placed them on the front seat of the vehicle. The garage owner ordered a new quarter panel and hood. The garage owner had a friend, Shawn Nadeau, who owned another garage and body shop on Leeds Avenue, pick up Mr. St. Hilaire’s truck one night, take it back to his garage, and install the new parts. When Mr. Nadeau drove the pickup truck to his garage, there were no problems with the operation of the vehicle.

[41] Meanwhile, on July 6, 2015, the police, who had been tracking down white Ford F-250 pickup trucks in the Ottawa area, arrived at Mr. St. Hilaire’s door while he was at work. Mr. St. Hilaire’s wife told the police that her husband should be back home at about 8:00 p.m. She alerted Mr. St. Hilaire of the visit. Mr. St. Hilaire moved to the Adams Airport Inn in an effort to avoid police detection. Unbeknownst to Mr. St. Hilaire and his wife, the couple’s premises were under police surveillance from 6:45 a.m. the following day.

[42] On July 7, 2015, Che drove Mr. St. Hilaire to Mr. Nadeau’s garage to collect the repaired pickup truck. Mr. St. Hilaire reattached the vehicle’s licence plates. Mr. St. Hilaire immediately went to a car wash, after which he went to a residential address where he was working on a contract. After Mr. St. Hilaire had left Mr. Nadeau’s garage, the police visited Mr. Nadeau and seized the damaged parts from Mr. St. Hilaire’s truck. Shortly after that, the police arrested Mr. St. Hilaire.

Evidence of Shawn Nadeau

[43] Shawn Nadeau testified that, when Mr. St. Hilaire and his brother came to Mr. Nadeau’s garage to pick up Mr. St. Hilaire’s truck, after the repairs had been completed, Mr. Nadeau asked Mr. St. Hilaire if it was the truck involved in the hit-and-run death of a cyclist on Leitrim Road. Mr. St. Hilaire acknowledge that it was the truck and he was the driver. According to Mr. Nadeau, Mr. St. Hilaire told him that:

• Mr. St. Hilaire’s brother had pressured him to drive him home after a wedding;
• Mr. St. Hilaire had been very tired, had not wanted to drive his brother home but, in the end, had done so;
• Mr. St. Hilaire thought that he had hit a mailbox on the way back to his own home; and
• Mr. St. Hilaire had stopped, gotten out of his truck and looked around. He had not seen or heard anything, so he had gotten back into his truck, had driven home, and had gone to sleep.

[44] At first when Mr. Nadeau was asked in examination-in-chief if there was any discussion about alcohol consumption, he stated that he could not remember. He was referred to the statement he gave to the police late in the day on July 7, 2015 in which he said Mr. St. Hilaire had told him that he had been drunk at the wedding party. Under cross-examination, Mr. Nadeau stated that Mr. St. Hilaire had never told him that he had been drunk at the wedding party. All that he had said was that he had been drinking and that he was very tired. Mr. Nadeau also clarified that the statement he had earlier given to the police to the effect that Mr. St. Hilaire had told him that he had fallen asleep was incorrect; Mr. St. Hilaire had never said that.

Expert Evidence

Adam Cybanski

[45] Adam Cybanski was qualified as an expert in the relatively new field of video analysis of vehicle velocity. He comes from a background of flying helicopters, testing and evaluating flight testing technology for helicopters, and finally analyzing air craft crashes. Since 2014, he has been applying his knowledge and methodologies to ground collisions but, as of the time of preparing his first report in this case, had only completed a few analyses of vehicle velocity in the context of ground collisions.

[46] Mr. Cybanski analyzed the traffic camera videos from the three cameras referred to above, with a focus on Mr. St. Hilaire’s white pickup truck. Using various techniques, Mr. Cybanski determined that Mr. St. Hilaire’s truck was travelling at approximately 80 k.p.h. for approximately 50 metres east of the Leitrim/Gilligan intersection. This is consistent with Mr. Hilaire’s evidence in regard to the speed at which he was travelling. Using a qualitative analysis, Mr. Cybanski determined that Mr. St. Hilaire’s truck was travelling faster, but not much faster, than six other vehicles observed on the Camera 1 video travelling eastbound from the Leitrim/Gilligan intersection, with one of those vehicles travelling at virtually the same speed that Mr. St. Hilaire’s truck was travelling. Mr. Cybanski also observed that a police cruiser going through that intersection shortly before Mr. St. Hilaire, was travelling faster than Mr. St. Hilaire’s truck. These comparisons were done only in regard to approximately 50 metres of road, with the vehicles taking as little as two and a half seconds to travel this distance.

[47] From his analysis of the Camera 2 video at the Leitrim/Albion intersection, Mr. Cybanski offered the opinion that Mr. St. Hilaire’s vehicle when leaving that intersection accelerated from approximately 42-43 k.p.h. up to possibly 110 k.p.h. by the time it passed from view, though Mr. Cybanski on cross-examination acknowledged that he was less confident in the calculations showing that Mr. St. Hilaire’s speed may have increased above 100 k.p.h. Mr. Cybanski analyzed the speed of a small grey sedan seen on the video before Mr. St. Hilaire’s pickup truck and a black SUV seen after Mr. St. Hilaire’s truck. The first got up to a speed of approximately 90 k.p.h. as it disappeared, and the second got up to a speed of approximately 88 k.p.h. at the same distance. Mr. Cybanski was of the view that Mr. St. Hilaire’s vehicle was travelling faster than the other two vehicles, but he could not be precise as to its exact speed.

[48] From his analysis of the Camera 3 video at the Albion/Lester intersection, Mr. Cybanski calculated that, when the three vehicles just referred to were approaching the intersection, the small grey sedan reduced its speed from somewhat under 80 k.p.h. to 50 k.p.h., Mr. St. Hilaire’s truck reduced its speed from somewhere around 110 k.p.h. to 80 k.p.h., and the black SUV reduced its speed from somewhat under 80 k.p.h. to 55 k.p.h. A comparison of the relative positions of the three vehicles in the Camera 2 and Camera 3 videos showed that Mr. St. Hilaire was catching up to the grey sedan and creating more distance between himself and the black SUV over this stretch of Albion Road, suggesting that he was travelling more quickly than either of the other vehicles.

[49] Mr. Cybanski’s calculations are not an exact science. He acknowledged that the accuracy of his assessment decreases the further away the vehicle is from the traffic camera and, depending on the type of analysis he is applying, he does not have confidence beyond a range of 50 or 100 metres from the camera, and has the greatest confidence in the range of 10 to 20 metres from the camera. As well, calculations based on vehicles driving away from a traffic camera are less accurate than those based on vehicles approaching the camera. Finally, accuracy can also be impacted by the position of the camera (here, quite high, which is good), the resolution of the camera (here, quite low), and the frame rate of the camera (again, here, quite low). Mr. Cybanski advised that the margin of error on some of his velocity calculations could be as much as 5 k.p.h.

[50] Mr. Cybanski also prepared a report with his estimate of the average speed at which Mr. St. Hilaire’s pickup truck was travelling between the various intersections. I assign minimal weight to these calculations due to the inability of City of Ottawa staff to confirm that the time on the three cameras was synchronized on the day and time in question.

Constable Steve Anderson

[51] Constable Steve Anderson of the Ontario Provincial Police was qualified as an expert in collision reconstruction; collection and interpretation of physical evidence and data from collision scenes; collision dynamics and trajectories; the causes of accidents; and the area and point of impact. Constable Anderson has been working in the field of collision reconstruction since 2004, has his level IV certification, and has been involved in the investigation of more than 448 collisions. Constable Anderson completed his Collision Reconstruction Report [3] in this case on November 12, 2016. His investigation is based entirely on the information that was compiled by officers with the Ottawa Police Services immediately following the collision.

[52] There is very little that Constable Anderson’s Report adds to the evidence provided by others who were on Leitrim Road on the day of the collision. Much of his report is just a reiteration of what is obvious in Sergeant Killeen’s photograph book or what can be seen on the videos.

[53] Constable Anderson did not consider the state of the roadway, the weather, the lighting, mechanical considerations, or the speed at which Mr. St. Hilaire’s truck was travelling to be factors in the collision. He noted that there were no tire marks indicating threshold or emergency braking. There was one tire mark on the shoulder of the road showing that, following impact, Mr. St. Hilaire’s vehicle had moved left toward the travelled portion of the road.

[54] The concluding paragraph of Constable Anderson’s report states:

The Ford entered the right shoulder by approximately one metre and impacted the cyclist. The Ford driver reacted to something and applied a left hand steering input, causing the tiremark with the lateral forces (post impact). It is unknown what the driver reacted to, but what is clear is that the driver of the Ford failed to properly drive within the dedicated through lane and it was this action which precipitated the events leading to the impact with the cyclist.

Count One: Dangerous Driving Causing Death

Legal Framework

[55] In R. v. Beatty, [2008] 1 S.C.R. 49, at para. 43, Charron J. summarized the two-pronged legal test to establish dangerous driving as follows:

(a) The Actus Reus

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

(b) The Mens Rea

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

[56] Most of us have in our minds some notion of what constitutes dangerous driving. Often the notion we have is tied to the consequences of someone’s negligent driving. For example, some people might believe that, because Andrew Nevin was killed by a motorist while he was peacefully cycling along the paved shoulder of a road, minding his own business, the manner in which the motorist was driving must have been dangerous, absent any evidence of vehicle malfunction.

[57] However, as the Supreme Court of Canada has repeatedly cautioned, it is the actual manner in which the motor vehicle was operated which is at issue; not the consequence of the driving (Beatty, at para. 46).

[58] As well, the Supreme Court has gone to great length to explain that criminal liability for negligence in the form of a conviction for dangerous driving requires blameworthy conduct that goes beyond the civil standard in tort law of a mere departure from the standard expected of a reasonably prudent person and goes beyond the negligence that would justify a conviction for careless driving under the Highway Traffic Act, R.S.O. 1990, c. H. 8, s. 130 (Beatty, at para. 6). There must be a marked departure from the civil standard. The distinction between a mere departure and a marked departure from the standard expected of a reasonably prudent person is a matter of degree. There is a continuum of negligence, with simple negligent driving at one end of the spectrum, careless driving somewhat further along the continuum, dangerous driving more blameworthy yet, with criminal negligence at the far extreme of the negligence continuum. The Supreme Court has instructed trial judges that, although civil liability for an accident may be easily established once negligence is proven, a finding of criminal liability with imprisonment as a possible outcome must be based on clearly blameworthy conduct. (See R v. Roy, [2012] 2 S.C.R. 60, at paras. 1-2, 28, and 30.)

Actus Reus Analysis

[59] In regard to the actus reus of the offence of dangerous driving, there are two aspects of Mr. St. Hilaire’s driving to consider in determining whether the Crown has proven beyond a reasonable doubt that Mr. St. Hilaire was driving in a manner “dangerous to the public” in all the circumstances as they existed on Leitrim Road at 5:55 a.m. on the morning of June 28, 2015. First, Mr. St. Hilaire was driving up to 30 k.p.h. over the posted speed limit. Second, Mr. St. Hilaire’s pickup truck veered out of its lane onto the paved shoulder of the road for at least 25 metres before returning to its proper lane. It was while Mr. St. Hilaire’s pickup truck was on the shoulder that Mr. Nevin was struck and killed. Crown counsel takes the position that it was not Mr. St. Hilaire’s speed that made his driving dangerous; it was the fact that he drove his vehicle on the paved shoulder of the road.

Nature of the Road

[60] Leitrim is an arterial road running east/west that connects some significant arteries running north/south from the City of Ottawa into the surrounding rural areas. Part of Leitrim Road also borders on the back side of the Ottawa International Airport and a golf course. Leitrim Road could be described as being rural.

[61] The collision occurred shortly after dawn on a stretch of Leitrim Road east of Gilligan Road and west of Albion Road. At this portion of Leitrim Road, there was a solid yellow line down the middle of the road, and solid white fog lines on each side of the road separating the driving lanes from a paved shoulder. Beyond the paved shoulders on both sides of the road were dirt shoulders and then ditches. The dirt shoulder where the collision occurred sloped downward into the ditch.

[62] Each driving lane measured 3.5 metres. The paved shoulder on the south side of Leitrim Road measured 1.59 metres.

[63] At the intersection of Leitrim and Gilligan Roads, there are three lanes on Leitrim Road, the centre lane being a left-hand turn lane for those travelling west on Leitrim Road and then south on Gilligan Road. As a result of this turn lane, which extends a distance easterly from the intersection and tapers away to the solid yellow line dividing the easterly and westerly lanes of traffic, the southerly lane of Leitrim Road going eastward from Gilligan Road is not in a straight line with the portion of Leitrim Road east of where the turning lane no longer exists. The lane starts a bit to the south, moves slightly northward (or left), and then straightens out (to the right) not far to the west of where the collision occurred.

[64] In the stretch near the Brazeau and May residences (between Gilligan and Albion Roads), there are no homes on the north side of Leitrim Road; there are just woods and tall trees. The south side of Leitrim Road in this locale has a mixture of tall trees and, in places, grasses or shrubs bordering the road, with some openings for driveways into a few residences and commercial properties. Most of the traffic on this stretch of Leitrim Road is through traffic.

[65] On June 28, 2015, Leitrim Road was paved and in good condition.

Posted Speed Limits

[66] The speed limits posted on Leitrim Road in the east bound lane are as follows:

• 80 k.p.h. from Limebank Road to west of Bowesville Road.
• 70 k.p.h. from west of Bowesville Road to west of Gilligan Road.
• 50 k.p.h. from west of Gilligan Road to Albion Road.

[67] The speed limits on Albion Road in the north bound lane are as follows:

• 80 k.p.h. from Leitrim Road to Lester Road.
• 50 k.p.h. from Lester Road northward.

Weather

[68] On June 28, 2015, the sun rose at 5:17 a.m. The collision occurred at approximately 5:55 a.m.

[69] The day was overcast. Although it was daylight, the lighting was muted and dreary. Both the traffic camera video from Camera 1, and the long distance photographs taken at the scene by Sergeant Killeen, show that long-range visibility along the stretch of Leitrim Road near where the collision occurred could have been compromised somewhat by flat lighting. That being said, the evidence of Mr. Legare, Constable Grison, and Sergeant Killeen was that visibility was good that morning.

[70] There was some drizzle and mist observed in this area shortly after the collision but it was not drizzling or raining at the time of the collision and the road was dry.

Traffic

[71] Like Mr. St. Hilaire, Christian Legare observed that there was very little traffic on Leitrim Road between 5:40 a.m. and 5:55 a.m. on that Sunday morning. This is confirmed by the Camera 1 video which showed that, between 5:40:00 a.m. (at the beginning of the video) and 5:54:00 a.m. (when Mr. Nevin is first observed east of the Leitrim/Gilligan intersection), there were only seven vehicles driving in an easterly direction and four vehicles driving in a westerly direction on the stretch of Leitrim Road between Gilligan Road and the site of the collision. The next vehicle to go through the intersection was Mr. St. Hilaire’s truck, at 5:54:59 a.m. By that time, Mr. Nevin had faded into the distance and was no longer visible on the video.

[72] After Mr. St. Hilaire’s vehicle at approximately 5:55 a.m., and until Constable Grison arrived on scene at approximately 6:05 a.m., six vehicles drove this stretch of Leitrim Road in an easterly direction and two in a westerly direction. None could be observed on the video to stop or slow down at the collision site.

[73] Aside from Mr. Nevin, no other cyclists or pedestrians were observed on the video.

[74] From the beginning to the end of the video (5:40:00 a.m. to approximately 6:10:00 a.m.), the traffic lights at Leitrim and Gilligan Roads appeared to be in a perpetual state of green for east and west bound traffic on Leitrim Road.

Speed of Mr. St. Hilaire’s Pickup Truck

[75] Mr. St. Hilaire’s evidence was that, while he was driving on Leitrim Road, he was travelling at an approximate speed of 80 k.p.h. This was the posted speed further west on Leitrim Road. Although the posted speed reduced to 70 k.p.h. near Bowesville Road, and then 50 k.p.h. near Gilligan Road, Mr. St. Hilaire did not reduce his speed accordingly. He maintained a more or less consistent speed throughout. According to Mr. Brazeau, who has lived next door to the accident scene on Leitrim Road for 50 years, most people speed on Leitrim Road. In his view, it is very common for people to drive between 70 and 80 k.p.h. in front of his house. He considered himself one of the few people who drives closer to the posted speed limit.

[76] Adam Cybanski prepared a Traffic Camera Video Analysis Validation Report on November 25, 2015. [4] Based on the information he gleaned from the Camera 1 video, together with tests done with Ottawa Police Service test vehicles, Mr. Cybanski concluded that Mr. St. Hilaire’s pickup truck was travelling at an approximate speed of 78-79 k.p.h. over the first 50 metres visible on the Camera 1 video, namely that distance just east of Gilligan Road. The collision occurred approximately 200 metres east of Gilligan Road. I see no need to review Mr. Cybanski’s methodology, the relative novelty of this form of analysis, the lack of peer review of his methods, the factors that can impact on the accuracy of his conclusions, and his estimated margin of error of about 5 k.p.h. to determine the weight that should be assigned to his evidence regarding Mr. St. Hilaire’s speed at the time of the collision. Mr. St. Hilaire has admitted that he was travelling this stretch of road at approximately 80 k.p.h. with little variation. There is no aspect of Mr. Cybanski’s evidence that contradicts this.

[77] Mr. Cybanski was also asked to calculate the average speed at which Mr. St. Hilaire’s pickup truck was travelling from the Leitrim/Gilligan intersection to the Leitrim/Albion intersection. [5] Mr. Cybanski calculated the average speed at 84.2 k.p.h. However, minimal weight can be assigned to this calculation as it is based on the time information from two cameras in the absence of evidence as to the extent to which the time stamps on those cameras were synchronized. The evidence of Kevin McLaughlin from the Traffic Operations of the City of Ottawa was that, despite regular efforts taken by the City to synchronize time stamps on traffic cameras, he had no way of knowing if the time stamps on Camera 1 and Camera 2 on the morning of June 28, 2015 were off or by how much they were off. [6]

[78] Based on the photographic evidence and on-scene measurements compiled by Sergeant Killeen and other officers with the Ottawa Police Services, Constable Steve Anderson estimated that the force applied to Andrew Nevin by the collision with Mr. St. Hilaire’s pickup truck would have been between 37 and 58 k.p.h. He identified several reasons to explain the difference between his estimate of the truck’s speed and that provided by Mr. Cybanski, all of which point to the reality that calculating the speed of a vehicle at the time of a collision is not an exact science. One reality impacting the accuracy of Constable Anderson’s speed calculation was the lack of definitive evidence as to the exact point of impact and the exact final resting place of Mr. Nevin. Evidence at trial from Mr. May was to the effect that Mr. Nevin’s body had been moved to enable first responders to attempt CPR prior to Sergeant Killeen taking photographs and measurements. As well, determining the final resting place in part by reference to discarded medical debris is a most inexact method. Another factor of significance here is that Constable Anderson, based in part on damage to Mr. St. Hilaire’s pickup truck, assessed the collision to be a glancing blow by the front passenger side of Mr. St. Hilaire’s vehicle. In these situations, the full speed of the vehicle is not imparted onto the individual struck. It also helps to explain why Mr. Nevin’s body moved to the right and why his bicycle ended up to the right in Mr. May’s driveway.

[79] I find that, at the time of the collision, Mr. St. Hilaire was travelling at approximately 80 k.p.h., or 22.22 metres per second, in an area of road where the posted speed limit was 50 k.p.h. If that were the only aspect of Mr. St. Hilaire’s driving worthy of comment, I would not have concluded that he was driving in a manner dangerous to the public, taking into account the good condition of the road, the unremarkable weather, the very light traffic, the limited number of residences on this stretch of Leitrim Road, and the reasonable expectation of minimal vehicular, bicycle, or pedestrian traffic on the road just after dawn on a Sunday morning. However, in addition to speeding, Mr. St. Hilaire also allowed his vehicle to be more than half-way into the paved shoulder of the road which one would reasonably expect to be used by any cyclists and pedestrians who happened to venture out that morning. This is the aspect of his driving which was most problematic and which led directly to Mr. Nevin’s death.

Driving on the Paved Shoulder

[80] The Camera 1 video shows Mr. St. Hilaire’s pick-up truck driving very close to, and possibly on, the white fog line as it drives eastward from Gilligan Road. Mr. Cybanski did a somewhat rough comparison of the lateral position of the eight vehicles (including Mr. St. Hilaire’s) travelling eastbound on Leitrim Road in the 15 minutes leading up to the collision as shown in the Camera 1 video. Mr. St. Hilaire’s pickup truck was driving the closest to the fog line. Beyond that, no conclusion can be drawn from the video evidence as to whether Mr. St. Hilaire’s vehicle was actually on the paved shoulder in the stretch of road leading up to the collision site, and Mr. Cybanski, understandably, offered no opinion in this regard. What is discernible from the video is that, in the area near the collision site, Mr. St. Hilaire’s truck appears to be close to the right-hand side of the road and then, just east of the collision site, Mr. St. Hilaire’s truck veers sharply to the left.

[81] Constable Steve Anderson identified a 24.93 metre tire mark on the south shoulder of Leitrim Road near the collision site. He attributed the tire mark to Mr. St. Hilaire’s truck, and this conclusion was not challenged by Defence counsel.

[82] On page 26 of his Report, Constable Anderson stated that, at the westerly end of the tire mark, it was .89 metres to the right of the white fog line. On page 73 of his report, Constable Anderson stated that the tire mark started at .98 metres to the right of the fog line. Whatever the correct measurement, the vehicle producing the tire mark was more than half way onto the 1.59 metre paved shoulder. According to Constable Anderson, in the area where there were gouges and scratches on the shoulder, indicating a collision had occurred and the bike had crashed to the pavement, the tire mark was 1.08 metres from the fog line. Almost immediately east of the marks caused by the bicycle on the shoulder of the road, the tire mark curves back toward the easterly through lane. This is consistent with the manoeuvre back to the travelling lane seen on the Camera 1 video.

[83] There is inadequate evidence to establish at what point, west of the tire mark, Mr. St. Hilaire’s pickup truck crossed onto the paved shoulder and for what period of time it remained there. The only evidence is that the truck was travelling on the shoulder for at least 25 metres. Travelling at 80 k.p.h., the truck may have been on the shoulder for a period as short as 1.125 seconds, though it was more likely on the shoulder for at least 2 seconds.

Application of Law to Facts

[84] In Beatty, Mr. Beatty, driving a pickup truck at or near the posted speed limit on a two-lane road failed to follow the curve of the road and instead, for no apparent reason, drove straight across the double solid mid-line into an oncoming vehicle, killing all three occupants. The point of impact was about half a metre into the opposite lane of traffic. It took Mr. Beatty’s vehicle .00268 seconds to cross the double line and make contact with the oncoming vehicle. Neither Mr. Beatty nor the other driver took any evasive action to avoid the collision. There was no evidence that Mr. Beatty had been driving inappropriately prior to the collision. The collision occurred at 2 p.m. on a well-travelled road. Mechanical failure, as well as any conditions relating to the road or weather, were ruled out as factors. Alcohol or other intoxicants played no role.

[85] At para. 51, Charron J. stated that, in all the circumstances, Mr. Beatty’s failure to confine his vehicle to his own lane of traffic was dangerous to other users of the highway. This meant that the actus reus of the offence of dangerous driving had been made out in that case, though Charron J. went on to accept the finding of the trial judge that the mens rea had not.

[86] There are similarities between the Beatty case and this case. Like Mr. Beatty, Mr. St. Hilaire let his pickup truck cross a clearly marked line on the road into an area where he should not have been driving. Mr. Beatty was travelling at approximately 90 k.p.h.; Mr. St. Hilaire was travelling at approximately 80 k.p.h. Mr. Beatty’s vehicle was only half a metre over the line; Mr. St. Hilaire’s was closer to a metre over the line. Mr. Beatty’s vehicle was in the wrong lane for only a small fraction of a second prior to the collision; Mr. St. Hilaire’s vehicle was on the shoulder for possibly only one to two seconds before impact.

[87] There are some significant differences between the two fact situations. Crossing a centre line into oncoming traffic in the middle of the day on a highway creates more risk of harm to others than veering onto the shoulder of a secondary road shortly after dawn on a Sunday morning when there are no vehicles in sight and when it can reasonably be anticipated that there will be few, if any, vehicles, cyclists, or pedestrians out on the road at that time. That being said, the tragic consequences that have devastated all of Andrew Nevin’s loved ones and that have irrevocably altered the course of Mr. St. Hilaire’s life and the lives of his loved ones clearly show that the risk of harm to others was present.

[88] Another difference is that Mr. Beatty was otherwise obeying the rules of the road whereas Mr. St. Hilaire was travelling approximately 30 k.p.h. over the speed limit. That being said, the significance of this factor is muted due to several factors. The driving occurred very early on a Sunday morning when there were very few vehicles on the road, no pedestrians, and only one cyclist over a half hour period and when very little traffic would reasonably be anticipated. It was daylight. There were no adverse weather or road conditions. Mr. St. Hilaire was travelling at a speed that many vehicles routinely travel on that stretch of Leitrim Road – a speed consistent with the posted speed limit on that road further to the west. Although Mr. St. Hilaire’s vehicle was travelling faster than six other vehicles travelling eastward on Leitrim Road in the fifteen minutes prior to the accident (but slower than a police vehicle captured on the video), the evidence is that he was not travelling significantly faster than the other vehicles.

Conclusion

[89] Having considered all of these factors, I am left with a reasonable doubt as to whether Mr. St. Hilaire’s driving on the stretch of Leitrim Road leading up to the collision site reached the level of negligence, namely driving “in a manner dangerous to the public”, required to prove the actus reus of the offence under s. 249(1)(a) of the Criminal Code. I reject the argument advanced by Crown counsel that driving on the paved shoulder of a road, regardless of how brief the period and regardless of any other circumstances, automatically satisfies the actus reus requirements for dangerous driving. In my view, this is a borderline case and, under our system of justice, doubts of this sort are resolved in favour of the accused. But even if I had found that the actus reus of the offence had been proven beyond a reasonable doubt, I am also left in reasonable doubt as to whether the mens rea requirement for a conviction of dangerous driving has been made out in the circumstances of this case.

Mens Rea Analysis

Background Considerations

[90] Mr. St. Hilaire has been driving pickup trucks since he started work as a landscaper, about 23 years ago. He had owned the Ford F-250 pickup truck he was driving on the morning of the collision for approximately 6 years prior to the incident. He was very familiar with how the truck handled. Therefore, there was no suggestion that Mr. St. Hilaire had difficulty keeping the pickup truck within the appropriate lane due to any inexperience handling a vehicle of that size.

[91] Mr. St. Hilaire knew Leitrim Road well – both because he drove that route frequently to visit his family in Barrhaven and because he drove the route for work-related purposes. The road in the vicinity of 2570 Leitrim Road is relatively straight and easy to navigate. It was paved and in a good state of repair. It presented no obstacles, sudden turns, or surprises. There is no evidence of any external thing that momentarily distracted Mr. St. Hilaire and averted his attention from the roadway. At the time of the collision, there were no other motor vehicles on that stretch of Leitrim Road.

[92] Mr. St. Hilaire was an experienced driver, aware of the basic rules of the road. He was aware that a vehicle should not be driven on the paved shoulder of a road and he understood the risks associated with such a manoeuvre. The centre line and fog lines on the road were easily visible. There were no weather conditions obstructing Mr. St. Hilaire’s view.

[93] All of this begs the question of why Mr. St. Hilaire’s pickup truck would have ended up on the paved shoulder of the road striking Mr. Nevin.

Crown and Defence Assertions

[94] The theory of the Crown, if I understand it correctly, is that one of two scenarios occurred – both of which mean that Mr. St. Hilaire had the requisite mens rea to be convicted of dangerous driving.

[95] Under the first scenario, at some point when Mr. St. Hilaire was driving east from Gilligan Road on Leitrim Road, he became aware of Andrew Nevin riding his bicycle on the paved shoulder. Under this scenario, despite his seeing Mr. Nevin, for some unexplained reason, Mr. St. Hilaire consciously let his pickup truck cross the fog line onto the shoulder and strike Mr. Nevin. This theory was not the focus of Crown counsel’s closing address, but it came through in some of the questioning of witnesses, particularly in regard to visibility.

[96] The evidence falls far short of proving that Mr. St. Hilaire, at any point in time prior to impact, was aware of Mr. Nevin riding his bicycle on the shoulder of the road. There was evidence that other drivers had observed Mr. Nevin cycling on the shoulder of the road at other points on Leitrim Road west of Gilligan Road. However, there was minimal, if any, evidence as to the physical surroundings or as to the distance between the cars and the bicycle when these observations were made. The tall trees and other vegetation along Leitrim Road east of Gilligan Road, the flat lighting and dreary conditions on the morning in question, the absence of rear-facing reflectors on Mr. Nevin’s bicycle, [7] Mr. Nevin’s dark clothing, and the absence of any reflective material on that clothing are factors that lend support to Mr. St. Hilaire’s assertion that he never saw Mr. Nevin. The fact that at no time between Gilligan Road and the point of impact did Mr. St. Hilaire take any evasive action to avoid Mr. Nevin, or jam on his brakes, also supports the conclusion that Mr. St. Hilaire never saw Mr. Nevin.

[97] As well, the evidence falls far short of proving that Mr. St. Hilaire knowingly or consciously drove on the shoulder of Leitrim Road, thereby putting any cyclist or pedestrian who may have been on the shoulder at that time at mortal risk. On the contrary, the Camera 1 video shows Mr. St. Hilaire’s truck more in the centre of its lane as it heads away from Camera 1 than it initially was close to the Leitrim/Gilligan intersection. The Camera 1 video also shows Mr. St. Hilaire jerking his truck to the left after the impact with Mr. Nevin’s bicycle when, according to Mr. St. Hilaire, he woke up and realized that his pickup truck was on the shoulder of the road. There is no evidence supporting the conclusion that Mr. St. Hilaire would ignore the fog line regardless of the risks associated with doing so.

[98] Under the second scenario, which Crown counsel advanced in a fulsome way during her closing address, the Crown asserts that Mr. Hilaire’s pickup truck veered onto the paved shoulder of Leitrim Road because Mr. St. Hilaire fell asleep and lost control of the vehicle. The timing of his falling asleep could not have been worse because it happened just as he was coming abreast with Mr. Nevin. Mr. St. Hilaire agrees that he fell asleep, his truck veered onto the paved shoulder of the road, and he only woke up as a result of the bang occasioned by his striking or running over Mr. Nevin’s bicycle.

[99] The theories of the Crown and the Defence diverge in two respects. Mr. St. Hilaire asserts that he must have fallen asleep at some point after the Leitrim/Gilligan intersection because he cannot remember anything after going through those traffic lights; the Crown asserts that Mr. St. Hilaire had some control over his truck until some unspecified point close to the point of impact. Mr. St. Hilaire asserts that he had no warning that he was going to fall asleep before he did so; the Crown asserts that Mr. St. Hilaire should have realized before he started to drive on the morning of June 28, 2015 just how tired he was and the concomitant risk that he could fall asleep behind the wheel or, at the very least, he should have realized as he was driving east from the Leitrim/Gilligan intersection that he needed to pull over and stop driving because he was very tired and at risk of falling asleep.

[100] The case of R. v. Jiang, 220 C.C.C. (3d) 55, at para. 22, stands for the proposition that “… a sleeping 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.” Ms. Jiang was acquitted of dangerous driving because the Crown could not prove either scenario.

[101] As expressed by Cromwell J. in Roy, at para. 36, there are two questions to consider:

The first is whether, in light of all of 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.

Evidence Regarding Mr. St. Hilaire Being Sleepy

[102] Mr. St. Hilaire’s uncontroverted evidence was that he normally sleeps about seven hours a night. On Friday, June 26, 2015, he did not work in his landscaping/renovation business but instead made preparations for the weekend. On Friday night, he attended a family gathering at his mother’s home in Barrhaven. He stayed quite late at the gathering, but still managed to get approximately seven hours of sleep that night. On Saturday, he did some chores in the morning in preparation for his brother’s wedding in the afternoon. He drove his pickup truck to his brother’s home in Barrhaven at approximately 11 a.m. He went in a limousine with other wedding party members to the church in Barrhaven for the 2 p.m. celebration. Between 7 p.m. and midnight, Mr. St. Hilaire was at the wedding reception at the Tudor Hall. From approximately 12:30 a.m. to 4:45 a.m., Mr. St. Hilaire was at his mother’s home in Barrhaven, visiting with out-of-town relatives.

[103] Crown counsel asserted that any reasonable and prudent person in Mr. St. Hilaire’s position should have realized at 4:45 a.m. on Sunday morning that he or she was too tired to get behind the wheel of a car. At the very least, any reasonable and prudent person in Mr. St. Hilaire’s position who was feeling drowsy by the time he got to the Leitrim/Gilligan intersection, would have immediately pulled off the road and not driven any further. According to Crown counsel, Mr. St. Hilaire’s conduct, when considered at either point in time, amounted to a marked departure from the standard of care that a reasonable person would observe in Mr. St. Hilaire’s circumstances. According to Crown counsel, Mr. St. Hilaire’s assertion that he was feeling fine to drive when he left Barrhaven and was unaware, at any time prior to his falling asleep, that he was at risk of doing so, should be rejected. In advancing this argument, Crown counsel relied heavily on the evidence of Shawn Nadeau as to what Mr. St. Hilaire allegedly said to him regarding his consumption of alcohol during the course of wedding celebrations and his state of tiredness.

[104] Mr. Nadeau tried to provide his evidence in an honest and straight-forward fashion. Testifying was a difficult process for him. He had a number of anxiety attacks, requiring brief breaks to enable him to regain his equilibrium. Although Mr. Nadeau’s credibility is not in issue – the reliability of his evidence is.

[105] Mr. Nadeau had trouble remembering the details of the brief conversation he had with Mr. St. Hilaire and his brother, Che, when they were picking up Mr. St. Hilaire’s truck more than three years ago. Mr. Nadeau acknowledged that he was not taking any notes at the time of the conversation with Mr. St. Hilaire, the conversation had been brief, he did not ask any clarifying questions, and the details did not seem that important to him at the time. Mr. Nadeau had to refer to earlier statements to refresh his memory on significant details. At the same time, he resiled from some things he said in those earlier statements.

[106] For example, Mr. Nadeau could not remember what Mr. St. Hilaire had said to him about drinking at the wedding. After referring to an earlier statement, Mr. Nadeau claimed that Mr. St. Hilaire had stated that he had gotten drunk at the wedding party. Under cross-examination, Mr. Nadeau clarified that Mr. St. Hilaire did not say that he had got drunk – just that he had been drinking. Another example is that, although in an earlier statement Mr. Nadeau had claimed that Mr. St. Hilaire had told him that he had fallen asleep, Mr. Nadeau’s evidence was that Mr. St. Hilaire had never told him that. According to Mr. Nadeau, what Mr. St. Hilaire had told him was that he had been very tired, but that his brother had pressured him to drive him home, and he had done so.

[107] According to Mr. St. Hilaire, he never told Mr. Nadeau that he had been drunk, that he was very tired, that either brother had pressured him or forced him to drive that brother home, and that he had driven a brother home despite not wanting to. Mr. St. Hilaire’s evidence was that he had consumed only one glass of wine at the wedding reception – and that was in order to have something with which to toast the bride and groom – and that is what he had told Mr. Nadeau. As well, Mr. St. Hilaire’s evidence was that he had told Mr. Nadeau that he had fallen asleep.

[108] Without even considering the evidence of Mr. St. Hilaire which is challenged, there is his uncontroverted evidence and other evidence that raises doubts about the accuracy of Mr. Nadeau’s version of the conversation he had with Mr. St. Hilaire. As well, the lack of evidence raises doubts about Mr. Nadeau’s version of the conversation.

[109] Mr. St. Hilaire’s uncontroverted evidence was that:

• Mr. St. Hilaire’s brother, Yuri, lived on the next street over from the home of Mr. St. Hilaire’s mother;
• Yuri and his bride were staying at a hotel that night;
• Mr. St. Hilaire had not seen Yuri after the reception;
• when he left his mother’s home, Mr. St. Hilaire had walked over to Yuri’s home to get Mr. St. Hilaire’s truck to drive home; and
• Mr. St. Hilaire’s brother, Che, lived a five-minute drive from the home of Mr. St. Hilaire’s mother.

[110] Mr. St. Hilaire denied that he had driven either brother home on the morning of June 28, 2015 and, based on the state of the evidence, I cannot conclude that he did. This brings into question the reliability of Mr. Nadeau’s evidence that he was told by Mr. St. Hilaire that that had happened. This, in turn, raises questions about the reliability of other aspects of Mr. Nadeau’s evidence.

[111] There is no evidence contradicting Mr. St. Hilaire’s evidence that he does not drink alcohol on a regular basis; he only drinks occasionally at family functions. When he does drink alcoholic beverages, he does not have more than one or two drinks. He does not buy beer and does not stock any alcohol at home. He does not need alcohol to enjoy himself in a social setting.

[112] Magdalena Lendor was one of Mr. St. Hilaire’s out-of-town cousins who had come to Ottawa for Yuri’s wedding and was staying at the home of Mr. St. Hilaire’s mother. Ms. Lendor’s evidence was that her husband had been drinking at the wedding reception and Ms. Lendor made it clear that he was not going to be driving her and others back to the home of Mr. St. Hilaire’s mother, where they were all staying. She instructed her husband to find someone else to drive their vehicle home. Her husband came back, proposing Mr. St. Hilaire as the designated driver. Although Ms. Lendor had not had the opportunity to observe how much alcohol Mr. St. Hilaire may have consumed at the wedding reception, because she was sitting with her back to the head table, Ms. Lendor deemed Mr. St. Hilaire to be an acceptable designated driver for her family. He did not appear to her to be under the influence of alcohol. There was no smell of alcohol on his breath. Mr. St. Hilaire drove in an appropriate fashion to his mother’s home without incident and without any concern on Ms. Lendor’s part. That drive lasted approximately half an hour. Ms. Lendor had not consumed any alcohol that evening but could not drive her husband’s van because she did not have a licence. She presented as someone who would not allow anyone to drive her family’s vehicle if she had any concerns whatsoever that the driver might be impaired.

[113] The evidence is inadequate to allow me to find that Mr. St. Hilaire consumed alcoholic beverages at the wedding reception or at the gathering at his mother’s home such that his ability to drive was impacted in any respect due to the alcohol. The only suggestion that alcohol could have played some role in Mr. St. Hilaire being a risk on the road comes from the evidence of Shawn Nadeau which, as I explained earlier, is not sufficiently reliable, to support a finding that alcohol played any role in this tragedy. As well, there is no evidence that Mr. St. Hilaire ingested any prescription or non-prescription drugs that would have impaired his ability to drive.

[114] This leaves Mr. Nadeau’s evidence that Mr. St. Hilaire told him that he had been very tired when he went to drive himself home. I cannot rely on this evidence from Mr. Nadeau to conclude that that was in fact the case, considering the following:

• Mr. St. Hilaire denies that he ever said that to Mr. Nadeau.
• Mr. St. Hilaire denies that he felt very tired when he left the gathering at his mother’s house and started to drive home.
• There is no evidence from anyone else at that gathering describing the level of tiredness exhibited by Mr. St. Hilaire.
• The only evidence is from Ms. Lendor that, approximately four hours earlier, Mr. St. Hilaire appeared perfectly competent to drive and drove appropriately from the reception to his mother’s home.
• There was nothing urgent requiring Mr. St. Hilaire to drive home at the time, and he could have slept at his mother’s home (though this fact is a double-edged sword).
• There is no evidence that Mr. St. Hilaire drove in a negligent, dangerous, or erratic fashion at any time from Barrhaven to the Leitrim/Gilligan intersection and beyond.
• In an earlier statement, Mr. Nadeau had claimed that Mr. St. Hilaire told him that he had fallen asleep but, when testifying, Mr. Nadeau denied that Mr. St. Hilaire had ever said that to him, again raising a question about the reliability of Mr. Nadeau’s evidence.
• Mr. Nadeau claimed that Mr. St. Hilaire told him that, following the accident, he had gotten out of his vehicle to look around but had not seen or heard anything; however, we know from the Camera 1 video that that did not happen. This suggests that what Mr. St. Hilaire told Mr. Nadeau was not necessarily true or that Mr. Nadeau misunderstood what was said to him.

[115] In these circumstances, it would not be safe for me to place reliance on Mr. Nadeau’s testimony to conclude that Mr. St. Hilaire was too tired to get behind the wheel on the morning of June 28, 2015 and he knew, or ought to have known, that he was too tired to do so. The state of the evidence raises a reasonable doubt that this was the case.

[116] As well, I cannot conclude that driving a vehicle at approximately 5:00 a.m., after one has been awake since the previous morning, necessarily represents a departure (let alone a marked departure) from the standard of care that a reasonably prudent person would observe in the same circumstances in which Mr. St. Hilaire found himself. To conclude otherwise would cast the net too wide for a conviction for dangerous driving. Something more is required for a conviction for dangerous driving, bringing with it the possibility of imprisonment for up to 14 years, than a finding that the person driving has missed a night of sleep. Put slightly differently, I am not convinced beyond a reasonable doubt that a reasonably prudent person in the same circumstances would necessarily have foreseen the risk of falling asleep without warning while en route. Even if a reasonably prudent person would have foreseen this risk, I am not convinced beyond a reasonable doubt that the failure of Mr. St. Hilaire to do so represented a marked departure from the expected norm.

[117] The evidence convinces me that, at some point between the Leitrim/Gilligan intersection and the point of impact with Mr. Nevin’s bicycle, Mr. St. Hilaire nodded off to sleep and his pickup truck left the eastbound lane and veered onto the paved shoulder. The Crown has not proven that, before this happened, Mr. St. Hilaire was aware of the presence of Mr. Nevin on his bicycle on the shoulder of the road. The evidence also falls short of establishing exactly where Mr. St. Hilaire fell asleep. Mr. St. Hilaire testified to having no memory of events after he passed through the Leitrim/Gilligan intersection. In his mind, that must have meant that he fell asleep shortly after the intersection. I reject this, as the Camera 1 video shows his truck being driven in the eastbound lane which, at that point, curves subtly to the left [8], and the truck not drifting in either direction for some distance beyond the intersection. It is at some point between where the position of the truck on the road can no longer be precisely determined in the Camera 1 video, and the point of impact, that the truck veers onto the shoulder of the road – signaling that Mr. St. Hilaire had lost consciousness of driving. That happened within a few seconds of impact.

[118] The Crown asks me to infer from the fact that Mr. St. Hilaire nodded off to sleep shortly before the point of impact that he must have had ample warning before this that he was too tired to drive and, consequently, he should have pulled off the road sooner and not driven. This may be the case, but that is not a finding that I can make based on the state of the evidence. The following passage from Jiminez v. R. (1992), 173 C.L.R. 572 (Aust. H.C.), at 581, quoted in Jiang, is apt:

…it may be proper in many cases to draw an inference that a driver who falls asleep must have had warning that he might do so if he continued to drive or that otherwise he knew or ought to have known that he was running a real risk of falling asleep at the wheel … [but]… it does not necessarily follow that because a driver falls asleep he has had a sufficient warning to enable him to stop.

[119] Mr. St. Hilaire claims he had no such warning and that he had not been feeling overtired to drive up to that point of his trip home. There is no evidence from other drivers that he had displayed any erratic driving before he fell asleep. No erratic driving is apparent in the Camera 1 video until immediately before impact. In these circumstances, I am left with a reasonable doubt as to whether Mr. St. Hilaire, prior to falling asleep, was or should have been aware of the risk and of the danger involved in continuing to drive and whether he had sufficient time to react. Once Mr. St. Hilaire had fallen asleep, it was too late for him to be in a position to make choices.

[120] As a trial judge, I must make findings based on all of the evidence of the unique circumstances in this case. Quite understandably, I have not been referred to any cases directly on “all fours” with this case and, as a result, jurisprudence relating to other fact situations is of minimal assistance.

[121] Here, there is no evidence that Mr. St. Hilaire knew prior to getting into his car that he was inordinately sleepy and required immediate rest, as was the case in R. v. Buchanan, [2002] O.T.C. 449, where Mr. Buchanan had fallen asleep in his car following a night shift, and had slept in the car for 45 minutes before starting to drive. Although he claimed to feel alert when he woke up, Mr. Buchanan initially kept his windows open to allow cool air to refresh him and he contemplated stopping to get a coffee to help him stay awake. He did not stop for the coffee, he shut his windows when he got cold, he engaged cruise control, and he fell asleep. The court determined that Mr. Buchanan knew that he was tired and, at the very least, ought to have known that he was still sleepy and not in a fit state to drive. It did not help that Mr. Buchanan’s credibility was discredited at trial. Mr. Buchanan was found not guilty of criminal negligence causing death, but guilty of dangerous driving causing death.

[122] In R. v. Drystek, 2007 ONCA 141, Mr. Drystek claimed to have no memory of his driving over the 15 kilometre stretch of highway leading up to the collision caused by Mr. Drystek’s vehicle crossing the centre lane of highway into oncoming traffic. Mr. Drystek provided no evidence that he was sleeping or unconscious at the time of the collision. There was no evidence of the onset of a sudden illness. The accident occurred in the evening after Mr. Drystek had consumed an evening meal and a couple of glasses of wine. He denied having been sleepy or sleep deprived when he got behind the wheel, and he offered no explanation for the collision. An expert’s report suggesting that sleep apnea may have caused the accident was rejected as being purely speculative. Of significance was that Mr. Drystek had straddled the centre line and had corrected himself shortly before the accident, evidencing his knowledge of his lack of control of his vehicle. This should have impelled Mr. Drystek to get off the road. Mr. Drystek was found guilty of dangerous driving – a decision upheld on appeal. [9]

Conclusion

[123] In conclusion, despite the horrible and tragic consequences in this case, I am left with a reasonable doubt as to whether Mr. St. Hilaire’s brief period of lapsed attention – possibly only a few seconds – during which time Mr. St. Hilaire was driving on the shoulder of Leitrim Road was sufficient to found criminal liability for dangerous driving. There is simply insufficient evidence to allow me to make a finding of a marked departure from the standard of care that a reasonable person would observe in Mr. St. Hilaire’s circumstances – either when he decided to drive home or at any time while driving home prior to his falling asleep.

Count Two: Failure to Stop at the Scene of an Accident

Legal Framework

[124] The Crown must prove beyond a reasonable doubt the following essential elements of the offence of failure to stop at the scene of an accident under s. 252(1.3) of the Criminal Code, as particularized in the indictment:

• Mr. St. Hilaire had care, charge, or control of his pickup truck. This is not in dispute.
• Mr. St. Hilaire’s truck was involved in an accident. This is not in dispute.
• The accident was with Andrew Nevin. This is not in dispute.
• The accident caused Mr. Nevin’s death. This is not in dispute.
• Mr. St. Hilaire failed to stop his pickup truck and give his name and address and offer assistance. This is not in dispute.
• Mr. St. Hilaire knew that he had hit a person with his truck. This is in dispute.
• Mr. St. Hilaire failed to stop with the intent to escape civil or criminal liability. This is also in dispute.

[125] As stated by Blishen J. in R. v. Hatcher, [2005] O.T.C. 425, at para. 35, the offence under s. 252(1) is a specific intent offence requiring proof beyond a reasonable doubt of mens rea at two stages. The first mens rea requirement is that Mr. St. Hilaire knew that his truck had struck a person. Knowledge of the collision must be contemporaneous with the incident. [10] The second mens rea requirement is that Mr. St. Hilaire, with this knowledge, failed to stop in order to escape civil or criminal liability arising out of the collision. If the Crown does not prove beyond a reasonable doubt that Mr. St. Hilaire knew that he had hit a person, then there is no need to consider if he had the intent to escape liability when he left the scene.

[126] The concept of knowing something also encompasses the concept of wilful blindness. [11] In other words, the Crown can prove the first mens rea requirement by establishing beyond a reasonable doubt that Mr. St. Hilaire suspected that his truck had struck a person, he knew that he should have inquired further to ascertain if that person had sustained bodily harm or had been killed, and he deliberately refrained from doing so because he did not want to find out the truth.

[127] As I stated earlier, the evidence does not allow me to conclude that, at any time prior to the collision, Mr. St. Hilaire was aware of Mr. Nevin’s presence on the shoulder of the road. Mr. St. Hilaire denied that, at any time prior to impact, he had seen Mr. Nevin. Mr. St. Hilaire also denied that he had known or suspected that he had struck a person with his truck. No one observed the collision. To prove that Mr. St. Hilaire did have this first requisite mens rea, the Crown relied entirely on circumstantial evidence. I will review that evidence in some detail.

Damage to Mr. St. Hilaire’s Pickup Truck

[128] The hood of Mr. St. Hilaire’s truck was at two levels, with the higher level being most of the centre part of the hood above the grill, and the lower level being that portion of the hood over the front lights. The lower level of the hood on the right passenger side was crumpled downwards and slightly toward the rear. The passenger-side front light was smashed. Between the right front tire and the headlight, there was a small crack to the bottom of the upper fender or fascia which Constable Anderson attributed to the rear mounting bracket support piece on the left side of the bicycle seat. Just below this crack, on the lower fender or fascia, was a scrape that Constable Anderson attributed to the locking nut located on the side of the seat post. Below this scrape at the bottom of the lower fender or fascia on the passenger corner were scratches which Constable Anderson attributed to the components around the rear tire. Finally, the front passenger quarter panel in the forward area that curves around the tire and front passenger headlight was crumpled rearward and inward.

[129] Mr. St. Hilaire’s truck was equipped with dual frontal airbags, neither of which were deployed at the time of the collision.

[130] There is no evidence as to whether a driver of Mr. St. Hilaire’s height would have been able to see the damage to the truck when sitting in the driver’s seat. The location of the damage raises a strong doubt as to whether he would have observed any of the damage while driving. The collision happened in daylight and, as a result, Mr. St. Hilaire would not have noticed whether or not his front lights were functioning if he had them on. The fact that plastic pieces from the shattered right front headlight ended up in the ditch right beside the driveway to 2570 Leitrim Road does not remove the doubt about when Mr. St. Hilaire would first have noticed that his truck had been damaged in a collision. [12]

Damage to Mr. Nevin’s Bicycle

[131] The damage to Mr. Nevin’s bicycle is described fully by Constable Anderson in his report [13] and is consistent with the bicycle being struck by the front passenger-side corner of Mr. St. Hilaire’s truck. There was extensive damage in the rear wheel area, particularly on the left, with the rear rim being crumpled and almost folded in half. This may have been caused by the rear wheel of the bicycle being forced under the truck. [14] Damage further forward on the right side of the bike may have been caused by the bicycle falling to the right on the shoulder and creating the scrapes and gouges observed by Mr. May and Sergeant Killeen. [15] Damage in the area of the front wheel may have been caused by that wheel being run over by one of the passenger-side tires of the truck, leaving the circular marks on the shoulder further east than the gouge and scratch marks likely caused by the rear wheel of the bicycle. [16]

Injuries to Andrew Nevin

[132] The Report of Postmortem Examination prepared by Dr. Jacqueline Parai of the Eastern Ontario Regional Forensic Pathology Unit [17] sets out the catastrophic injuries sustained by Andrew Nevin. They included:

• a laceration on the back of his head,
• an abrasion on the back of his left shoulder and on the left side of his upper back,
• abrasions on the left and right sides of his lower back,
• multiple rib fractures,
• a laceration of his left lung,
• a complete transection of the thoracic aorta,
• a transection of the spinal cord at the thoracic level,
• lacerations of the liver, and
• bruises, abrasions, and lacerations on his lower extremities.

[133] The nature of Mr. Nevin’s injuries were such that Dr. Parai concluded that Mr. Nevin had not been run over by Mr. St. Hilaire’s truck and that he had died virtually instantly as a result of his being hit by the truck or as a result of his impacting the ground after being thrown from his bicycle.

[134] Paint chips were found in Mr. Nevin’s undershirt and t-shirt that were similar in all respects to the paint on the hood of Mr. St. Hilaire’s pickup truck. As well, fibres were collected from the right front quarter panel similar in all respects to the fibres comprising Mr. Nevin’s denim blue shorts, and a fibre similar in all respects to fibres comprising Mr. Nevin’s underwear was collected from the right front corner or right side of the hood. These findings are consistent with a finding that Mr. Nevin’s waist and lower back were the parts of his body that first came into contact with Mr. St. Hilaire’s truck.

Opinion of Constable Anderson, the Collision Reconstruction Expert

[135] Constable Anderson concluded that the collision occurred on the shoulder of Leitrim Road while Mr. St. Hilaire and Mr. Nevin were travelling in the same direction. The outer passenger edge of Mr. St. Hilaire’s pickup truck struck the rear wheel of Mr. Nevin’s bicycle, which crumpled. The bicycle was turned on its side and the truck ran over the front wheel. In the course of this collision, Mr. Nevin was sent in a trajectory on an approximate 25 degree angle from the direction in which the truck and bicycle had been travelling. The bicycle ended up near the middle of the driveway at 2570 Leitrim Road south of the paved shoulder. Marks left by Mr. Nevin’s body sliding over the pavement were visible beyond the bicycle and then in the ditch to the east and south of the paved shoulder.

[136] Randy May testified that, due to the depth of the ditch and the vegetation in it, Mr. Nevin’s body was not easily visible. He did not see the body until he was consciously looking for it. The evidence of both Mr. May and Mr. Brazeau was that motorists passed along Leitrim Road after the collision without stopping. Ms. Reaume did not notice anything as she passed in the westerly lane. As is evident from the Camera 1 video, several other drivers passing the point of impact in the immediate aftermath did not realize that there had just been a collision at that spot.

[137] Constable Anderson acknowledged that he could not say with any degree of accuracy what portion of Mr. Nevin’s body may have been higher than the front hood of Mr. St. Hilaire’s pickup truck at the point of impact. All he could say was that the leading edge of the pickup truck where the front grill meets the hood measured 1.27 metres from the road and Mr. Nevin’s height was 1.76 metres.

[138] At the time of impact, Mr. Nevin was not standing – he was riding a bicycle. In the Camera 1 video, Mr. Nevin is sitting on his bicycle seat while riding. No witness was able to say with any certainty the height of the bicycle seat prior to impact due to the damage sustained by the bicycle. As well, as the Camera 1 video shows, Mr. Nevin was leaning forward on the bicycle. His back was rounded with that part of his back just below his waist being the furthest to the rear. If the back wheel of the bicycle crumpled and collapsed at the point of impact, as suggested by Constable Anderson, Mr. Nevin’s body may have been positioned lower down than Constable Anderson posited when simply relying on Mr. Nevin’s height when standing.

[139] The absence of precise evidence as to what portion of Mr. Nevin’s body may have been above the front edge of Mr. St. Hilaire’s pick-up truck at the point of impact leaves open the question as to what, if anything, Mr. St. Hilaire would have observed when he woke up that would have alerted him to the possibility that his vehicle had collided with a cyclist.

[140] Mr. St. Hilaire’s evidence was that he was awoken by a bang. No one can say whether that bang was caused by Mr. St. Hilaire’s truck hitting the rear of the bicycle, hitting Mr. Nevin, or running over the front wheel of the bicycle. In any event, all of these instances occurred within less than a second. I accept Mr. St. Hilaire’s evidence that, as soon as he came to and realized that he was driving on the shoulder of the road, he turned the wheel to the left so that his truck would get back into the through lane. Constable Anderson’s evidence is that such a manoeuvre would have been reflexive in those circumstances. The tire mark started turning back in the direction of the easterly through lane starting approximately half-way along the driveway at 2570 Leitrim Road and ended at some point further east of the driveway. The Camera 1 video shows Mr. St. Hilaire’s truck jerking back into the easterly through lane.

[141] As can also be seen in the Camera 1 video, at no time during this sequence of events did Mr. St. Hilaire touch his brakes – even in a reflexive manner. The evidence was that he continued at more or less the same speed as he had been going prior to the collision. This evidence lends some support to Mr. St. Hilaire’s evidence that, although a bang woke him up, he did not sense anything was terribly amiss as a result.

[142] No evidence was tendered as to what someone driving a Ford F-250 truck, and following a path similar to that followed by Mr. St. Hilaire’s truck following the impact, could see out of their rear view or passenger-side mirrors. Based on this lack of evidence and based on the evidence regarding the position Mr. Nevin and Mr. Nevin’s bicycle following the collision, I am left in doubt as to whether Mr. St. Hilaire would have seen anything indicative of a collision with a bicycle had he looked in his rear view or passenger-side mirrors after he woke up and was manoeuvring the truck back to the eastbound lane. Considering the speed at which Mr. St. Hilaire was travelling and the distance he would have covered while manoeuvring back into the easterly through lane, it is possible that all that Mr. St. Hilaire would have seen through a mirror, if he saw anything, was a small black, unidentified object on the shoulder.

Post Offence Conduct

[143] The Crown relies on Mr. St. Hilaire’s post-offence conduct to support a finding of guilt on both the first and second counts.

[144] Crown counsel argued that evidence that Mr. St. Hilaire was travelling up to 20 k.p.h. over the speed limit on Albion Road, following the collision, is evidence that he was trying to distance himself from the site of the collision because he knew he had struck a person. There could be many other rational explanations for why Mr. St. Hilaire was travelling at this speed at that time – one being that he, like many other people, normally drive over the speed limit.

[145] Crown counsel also submitted that the fact that Mr. St. Hilaire checked his vehicle when he arrived home, and before going into the house to sleep, to make sure that he had not hit anything, is evidence that he suspected that his truck may have hit a person. In that this behaviour could also signal a more vague concern on the part of Mr. St. Hilaire that the bang he heard could have signalled some damage being sustained by his truck, it does not tend to prove that Mr. St. Hilaire suspected that he had hit specifically a person.

[146] That being said, Mr. St. Hilaire’s evidence that, when he arrived home, he saw the smashed passenger-side headlight, but did not see any of the damage done to the hood or to the right side panel above the light, is not easily accepted. His description of how he went to bed and only explored further the damage done to the truck when he got up later and had done some yard work does not ring true. His evidence that, at some point, he wondered if he had hit a mail box would make sense if he thought this immediately after the collision when he was looking in his mirrors, but made less sense after he fully appreciated the scope of the damage done to the truck. In the same vein, I do not accept his evidence that, later on June 28, 2015, he was planning to offer to repair any mailbox that he may have damaged on Leitrim Road.

[147] On the other hand, the fact that Mr. St. Hilaire took immediate steps to repair the damaged light so that he could operate his truck on the road, but took no immediate steps to repair any other damage done to the truck, and took no steps to hide that damage until days later, supports his assertion that, until he was told by his wife after a few days that she had heard that there was a hit-and-run fatality on Leitrim Road, he had not suspected that he had hit a person that morning. I note that Mr. St. Hilaire has been stopped by the police in the past and charged with a number of minor offences, such as failing to produce proof of insurance or a valid motor vehicle permit. [18]

[148] By Mr. St. Hilaire’s own evidence, once he realized that the police were looking for his pickup truck in regard to a fatal hit-and-run incident on Leitrim Road on the morning of June 28, 2015, he took steps to hide his truck, first, by placing a tarp over the damaged front portion, and then, by arranging for the hood and side panel of the truck to be repaired as quickly as possible. He also went into hiding at a hotel until the truck was repaired. However, as stated by Major J. in R. v. White, [1998] 2 S.C.R. 72, at para. 21: “Like any piece of circumstantial evidence, an act of flight or concealment may be subject to competing interpretations and must be weighed by the jury, in light of all the evidence, to determine whether it is consistent with guilt and inconsistent with any other rational conclusion.” (See also R. v. White, [2011] 1 S.C.R. 433, at paras. 22 and 137.)

[149] Here, Mr. St. Hilaire’s post-offence conduct in the days that followed the collision, which ultimately led to his guilty plea for obstruction of a peace officer, carries no weight in terms of a finding of guilt for either dangerous driving or leaving the scene of an accident. Once Mr. St. Hilaire realized that his truck had been in a fatal collision and he had left the scene of that collision, there was a rational explanation for him to feel guilty, to feel frightened, and to panic, aside from any consciousness of guilt based on all of the essential elements – including mens rea – required for convictions for dangerous driving or leaving the scene of an accident. This is particularly so when, according to Mr. Nadeau, Mr. St. Hilaire acknowledged to him that his pickup truck was responsible for hitting Mr. Nevin, he had been driving at the time, and he wanted to turn himself in to the police. In Mr. Nadeau’s presence, Mr. St. Hilaire’s brother, Che, told him that he could not do that because he had already made some repairs to his vehicle, too much time had elapsed since the accident, and he would not be treated fairly by the police. This is consistent with Mr. St. Hilaire’s evidence that, as soon as he realized his vehicle had been involved in a fatal accident, he had looked to Che for advice. Che had instructed him not to go to the police and, instead, to get the vehicle repaired right away. Mr. St. Hilaire, unfortunately, followed that advice and let Che handle the situation.

[150] The Crown relies heavily on the evidence of Alison Reaume, who observed Mr. St. Hilaire’s pickup truck turning north onto Albion Road from Leitrim Road shortly after the collision. Ms. Reaume’s evidence was not that dissimilar from that of Mr. St. Hilaire. Both testified that Mr. St. Hilaire had taken that corner at excessive speed. Mr. St. Hilaire said that, as a result of that speed, the arc of his turn was wider than it should have been. The Camera 2 video shows the passenger-side tires of the pickup truck being momentarily over the fog line on Albion Road before straightening up in the northerly through lane. Ms. Reaume described the truck as fishtailing – something Mr. St. Hilaire denied that the truck did. The Camera 2 video does not capture any fishtailing.

[151] The evidence of Ms. Reaume and Mr. St. Hilaire differs in two significant ways. Ms. Reaume implied that the whole time Mr. St. Hilaire was turning through the Leitrim/Albion intersection, he was facing a red light. Mr. St. Hilaire testified that, when he entered the intersection, the light was yellow. He was driving faster than he should have been to make the turn before the light turned red. Ms. Reaume also testified that, when her vehicle passed Mr. St. Hilaire’s pickup truck, Mr. St. Hilaire looked terrified. Mr. St. Hilaire denied that he was terrified at that time and denied that his expression would have conveyed such a message.

[152] What is concerning is that Ms. Reaume did not tell the police in the written statement she submitted shortly after her observations that Mr. St. Hilaire had gone through a red light or that he had looked terrified. This is despite the fact that she had contacted the police after learning that they were looking for the vehicle that may have been involved in a fatal hit-and-run accident at 5:55 a.m. on the morning of June 28, 2015 on Leitrim Road near Albion Road. One would have thought that these two points would have been very significant in Ms. Reaume’s mind and not points she would likely leave out of a statement. This leads me to wonder if the passage of time and the knowledge that Mr. St. Hilaire’s truck was involved in the collision has helped to plant these observations in her memory.

[153] In regard to Ms. Reaume’s observation that Mr. St. Hilaire went through a red light, two additional considerations reduce the weight to be attached to this evidence. As the Camera 2 video shows, Ms. Reaume was observing Mr. St. Hilaire going through the intersection from quite a distance north of the intersection. Ms. Reaume also observed that two vehicles travelling north on Albion Road and stopped at the Leitrim/Albion intersection to wait for the red light to change, had not yet started to move in response to a green light as Mr. St. Hilaire was making his turn through the intersection. One could rationally conclude either that they had seen Mr. St. Hilaire’s vehicle coming through the red light and were waiting for it to complete its turn, or that their light had not yet turned green to allow them to proceed.

[154] In regard to Ms. Reaume’s observation that Mr. St. Hilaire looked terrified, considering the speed at which both Ms. Reaume’s vehicle and Mr. St. Hilaire’s vehicle were travelling when they passed each other going in opposite directions, Ms. Reaume would not have had much time to make an observation of the expression on Mr. St. Hilaire’s face. As well, she did not know Mr. St. Hilaire and was therefore unfamiliar with the meaning of his facial expressions. Finally, it is possible that Mr. St. Hilaire’s expression reflected his concern from having moments earlier fallen asleep at the wheel and/or his concern about having made the turn at too fast a rate of speed. As has been emphasized in numerous cases, it would be dangerous in circumstances like these to assign much, if any weight, to a witness’s observations about the demeanour of an accused person. (See White, [2011] 1 S.C.R. 433, at paras. 107 and 141.)

Conclusion

[155] On the basis of all of the evidence, I am left with a reasonable doubt as to whether Mr. St. Hilaire knew or was wilfully blind to the fact that his pickup truck had struck a person.

Count Three: Obstruction of a Peace Officer in the Execution of His/Her Duties

[156] Mr. St. Hilaire pled guilty to count three: obstruction of a peace officer in the execution of his or her duties. There is ample evidence, recited above, to support a finding of guilt on this count.

Disposition

[157] I find Mr. St. Hilaire not guilty of counts one and two, but guilty of count three.

Aitken J.

Released: November 2, 2018

COURT FILE NO.: 15-R2133 DATE: 2018/11/02

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN – and – DEINSBERG G. ST. HILAIRE Accused

REASONS FOR JUDGMENT Aitken J.

Released: November 2, 2018

Footnotes:

[1] Exhibit 5. [2] Exhibit 4. [3] Exhibit 21. [4] Exhibit 6. [5] Exhibit 11. [6] Exhibit 25. [7] The evidence is that there were reflectors on the opposing sides of the bicycle’s black plastic pedals and possibly one white spoke reflector but no rear reflectors. [8] See Exhibit 21, the Collision Reconstruction Report, p. 61, Figure 1.54. [9] R. v. Drystek, 2007 ONCA 141, 43 M.V.R. (5th) 100 (C.A.). [10] R. v. Slessor, [1970] 1 O.R. 664, [1970] 2 C.C.C. 247 (C.A.), at para. 9. [11] R. v. Briscoe, [2010] 1 S.C.R. 411, at para. 21; R. v. Jorgensen, [1995] 4 S.C.R. 55, 102 C.C.C. (3d) 97, at para. 103; R. v. Duong (1998), 124 C.C.C. (3d) 392 (Ont. C.A.), at para. 21; R. v. Janzen, 2018 ONSC 2914, at para. 100; R. v. Hatcher, [2005] O.T.C. 425, 20 M.V.R. (5th) 123 (S.C.J.), at paras. 40-43. [12] See Exhibit 21, Collision Reconstruction Report, p. 32, Figure 1.24. [13] See Exhibit 21, Collision Reconstruction Report, pp. 51-54 and Exhibit 4, Photographic Exhibit, pp. 21-23, 54-58. [14] See Exhibit 4, Photographic Exhibit, pp. 56-57. [15] See Exhibit 4, Photographic Exhibit, pp. 12-17. [16] See Exhibit 4, Photographic Exhibit, pp. 18-20. [17] Exhibit 15. [18] Exhibit 26 Driver Record