Court File and Parties

COURT FILE NO.: CR-15-92 DATE: 2019/08/28 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Her Majesty the Queen v. Martial Laverdure

BEFORE: Justice A. Doyle

COUNSEL: Caitlin Downing, Counsel, for the Crown Jodie-Lee Primeau, Counsel for the Accused

HEARD: June 10, 11, 12, 13, 14, 15, 17, 18, 19, 20 and 21, and August 12, 13, 14 and 15, 2019 in Pembroke, ON

Trial Decision

Overview

[1] The accused, Mr. Martial Laverdure, is charged with dangerous driving causing death pursuant to s. 249 of the Criminal Code of Canada, R.S.C. 1985, c. C-46 (Code) which is allegedly to have occurred on January 11, 2015, in the City of Pembroke.

[2] Mr. Laverdure was convicted at his first trial held in September 2016 and sentenced in April 2017.

[3] In March 2018, the Ontario Court of Appeal allowed his appeal and remitted the matter for a new trial.

[4] The new trial in this matter commenced on June 10, 2019 and took 14 days. The Court received evidence from 11 lay witnesses, four officers and three experts.

Acknowledgement

[5] An incident that results in the tragic loss of life affects many people. Mr. Ernest Hall’s untimely passing has brought sorrow to Mr. Hall’s family and friends and has also touched many individuals in this community.

[6] The Court acknowledges this loss and expresses sympathy as a sudden death can cause so much pain to so many people.

[7] However, sympathy does not play a role in my decision today.

[8] The Court’s focus is on the charge of dangerous driving causing death that was laid against Mr. Laverdure. This trial is about whether the Crown can prove that Mr. Laverdure committed this offence. This must be proven beyond a reasonable doubt.

[9] The Court’s task is to apply the law as set out in the Code and in accordance with the directions of higher courts.

Brief Background

[10] On January 11, 2015, the Pembroke Lumber Kings’ were playing a hockey game at the Pembroke Memorial Centre (PMC) located on Lake Street in Pembroke. Lake Street is a two-lane roadway going in a west/east direction.

[11] Spectators who drove there, parked their vehicles in the PMC parking lot (P1) on the east side of the building on the south side of Lake Street. There are two entrances to lot P1.

[12] Spectators also parked in the parking lot (P2) on the north side of Lake Street across from the PMC. There is one entrance to P2.

[13] In addition, spectators parked in the area around the intersection of Frank Nighbor Drive and Lake Street (“intersection”). There are two lots in the intersection area and there is also street parking.

[14] As there is no crosswalk in front of the PMC for those spectators crossing to P2 from the PMC, spectators cross at different spots along Lake Street.

[15] There is an available pedestrian crossing on Lake Street at the intersection. Pedestrians were crossing at that intersection to go to their vehicles which were parked in that vicinity. In this decision, the use of the term “vicinity” means the area described above; i.e., the PMC, the immediate area surrounding the PMC, P1 and P2.

[16] It was a cold winter Sunday evening. The road was partially covered in light snow and slush, with some small snowbanks along both sides of Lake Street.

[17] Mr. Laverdure’s vehicle, a blue RAV4 (“Laverdure vehicle”), proceeded through the intersection as the light was green. He proceeded westbound on Lake Street in front of the PMC.

[18] Mr. Laverdure struck a pedestrian, Mr. Ken Brown who was walking westward on the roadway and on the north side of Lake Street. He was thrown to the ground, suffering some injuries including bruises, lacerations and strains. His daughter-in-law, Ms. Deana Brown, was also struck by something and suffered some injuries.

[19] Immediately after this impact, Mr. Laverdure applied his brake. In the process he struck and killed Mr. Ernest Hall. The Laverdure vehicle came to a stop, and Mr. Laverdure exited his vehicle and appeared distraught about what had occurred.

[20] There was no evidence of drug or alcohol consumption. The officer stated that the interior heat was on, the defrost system was on, the headlights were on and the radio was at medium level. The winter tires were not damaged nor balled. There were no distracting hand held devices in the car.

[21] In this decision, the Court will set out the following:

• the general legal principles involved in criminal cases;
• what elements the Crown must prove for a conviction of this charge; and
• an analysis of the evidence and my findings.

General legal principles and the elements of the charge

[22] Firstly, a fundamental principle in criminal law is that every person charged with an offence is presumed innocent until the Crown has proven his guilt beyond a reasonable doubt.

[23] Secondly, the burden of proof rests with the Crown to prove each essential element of an offence beyond a reasonable doubt. Mr. Laverdure does not need to prove his innocence.

[24] Thirdly, a reasonable doubt is not a farfetched or frivolous doubt. It is not a doubt based on sympathy or prejudice. It is a doubt based on reason and common sense. It is a doubt that logically arises from the evidence, or the lack of evidence.

[25] It is nearly impossible to prove anything with absolute certainty. Crown counsel is not required to do so. Absolute certainty is a standard of proof that is impossibly high. Proof beyond a reasonable doubt falls much closer to absolute certainty than the proof of probable or likely guilt.

[26] Dangerous driving is a form of negligent conduct. However, negligent driving will not necessarily constitute the offence of dangerous driving. As Charron J. of the Supreme Court of Canada stated in R. v. Beatty, 2008 SCC 5, [2008] 1 S.C.R. 49, there is a distinction between civil negligence and negligence in criminal cases. Dangerous driving is penal negligence.

[27] Finally, I turn to the essential elements that the Crown must prove for the Court to find Mr. Laverdure guilty of dangerous driving causing death. The driving must cause the death of another person. I am guided and bound by decisions of the Supreme Court of Canada, the highest court in this country, and the Ontario Court of Appeal, the highest court in Ontario.

[28] The Supreme Court of Canada in Beatty, supra, at para. 43, set out the two-pronged legal test to establish dangerous driving. I will read now from that decision:

(a) 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 [in the Criminal Code of Canada], 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 the place”.

(b) 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.

[29] Paragraph 40, in Beatty, supra, states:

[40] […] The standard against which the conduct must be measured is always the same — it is the conduct expected of the reasonably prudent person in the circumstances. The reasonable person, however, must be put in the circumstances the accused found himself in when the events occurred in order to assess the reasonableness of the conduct.

[30] The Court must focus on the actual manner in which the motor vehicle was driven, taking into consideration all the conditions and not the consequences of the driving.

[31] With respect to mens rea, or fault element of the offence, the Crown must show the “how and in what way” the accused’s driving went beyond carelessness and reached the level of a marked departure from the standard of care a reasonable person would show in the same position: see R. v. Roy, 2012 SCC 26, [2012] 2 S.C.R. 60, at para. 30; R. v. Reynolds, 2013 ONCA 433, 309 O.A.C. 13, at paras. 18-19.

[32] At para. 48 of Beatty, supra, the Supreme Court said that the presence of an objective mens rea is determined by assessing the dangerous conduct as against the standard expected of a reasonably prudent driver. If the dangerous conduct constitutes a marked departure from the norm, the offence will be made out. Marked departure from the standard of what is expected of a reasonable prudent person is a matter of degree.

[33] The lack of care must be serious enough to merit punishment. In R. v. Willock, 2006 CanLII 20679 (ON CA), 212 O.A.C. 82, Doherty J.A. held that a brief moment of carelessness, a moment of inattention and momentary lapse in attention is more suggestive of the civil than the criminal end of the negligence continuum, but in Beatty, the Supreme Court of Canada held that it could nevertheless find a marked departure from the standard of a reasonable person in a few seconds of conduct: see Beatty, supra, at para. 48.

[34] As stated in R. v. Ibrahim, 2019 ONCA 631 and R. v. Hundal, 1993 CanLII 120 (SCC), [1993] 1 S.C.R. 867, the mens rea is a modified objective test. It is NOT a momentary inattention or carelessness. It is aptly described in para. 23 of Ibrahim:

[23] The Supreme Court has addressed liability for dangerous driving on numerous occasions: see Beatty; Roy; R. v. Hundal, 1993 CanLII 120 (SCC), [1993] 1 S.C.R. 867. See also Don Stuart, Canadian Criminal Law – A Treatise, 7th ed. (Toronto: Carswell, 2014), at pp. 286-289. The actus reus of the offence is driving in a manner that is dangerous to the public, “having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place”: s. 249(1)(a); Beatty, at para. 43. The focus of the inquiry is the manner of operation of the vehicle, not the consequences of the driving: Beatty, at para. 46; Roy, at paras. 33, 35. The mens rea for the offence is a marked departure from the standard expected of a reasonable person in the circumstances: Beatty, at para. 48; Roy, at paras. 36, 38. This fault requirement was summarized by Cromwell J. in Roy, at para. 36:

It is helpful to approach the issue by asking two questions. The first is whether, in light of all the relevant evidence, a reasonable person would have foreseen the risk and taken steps to avoid it if possible. If so, the second question is whether the accused’s failure to foresee the risk and take steps to avoid it, if possible, was a marked departure from the standard of care expected of a reasonable person in the accused’s circumstances. [Emphasis in original.]

[35] The Court of Appeal in Ibrahim reiterated that the Court must not leap from the fact that there are tragic consequences of the driving, such as the death of an innocent person, to a conclusion about dangerousness. The Court in that case agreed with the trial judge’s emphasis that even good drivers may experience a momentary lapse of attention, and that such momentary inattention does not reach the level of a marked departure.

[36] Since Mr. Laverdure gave evidence, the Court is bound to consider the directions set out in R. v. W. (D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742 which directs me as follows:

• If I believe Mr. Laverdure’s evidence that he did not commit the offence charged, I must find him not guilty;
• Even if I do not believe Mr. Laverdure’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.
• Finally, even if Mr. Laverdure’s evidence does not leave me with a reasonable doubt about an essential element of an office, 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.

[37] As set out in the law that I have just described, numerous cases have determined the legal principles I must apply in this case. The Court is bound by these decisions and must apply the law to the evidence the Court accepts.

Analysis

General comments

[38] Charges of dangerous driving causing death turn on their facts.

[39] The Court heard from many civilian witnesses. Some witnesses have testified three times: at the preliminary inquiry in June 2015, at the first trial held in September 2016, and again at this trial.

[40] The Court admitted two expert reports of two accident reconstructionists, Mr. Guy Poirier and Mr. Peter Williamson. It heard the oral evidence of Mr. Williamson and the evidence of an expert mechanic, Constable Stewart Unhola, who examined the Laverdure vehicle after the collision.

[41] The Court admitted the transcript of Constable Guy Poirier’s testimony from the first trial and his accident reconstruction report pursuant to s. 715 of the Code and under the requirements of the principles set out in R. v. Khan, 1990 CanLII 77 (SCC), [1990] 2 SCR 531.

[42] Constable Poirier was unable to attend the trial due to medical issues and hence defence counsel in this trial did not have an opportunity to cross-examine Constable Poirier.

[43] In determining whether the Crown has proven that Mr. Laverdure is guilty of dangerous driving causing death, the Court will extensively review the evidence of the witnesses as it pertains to the following:

• i. The general conditions in the area of the collision;
• ii. The vehicular and pedestrian traffic at the time of the collision;
• iii. The amount of vehicular and pedestrian traffic that might reasonably be expected to be there at the time;
• iv. The location of traffic, vehicles and pedestrians;
• v. The road conditions, including how wet the road was; the amount of snow, slush, and markings on the road; and whether there were sidewalks, curbs or snowbanks;
• vi. The lighting in the lots, on the road, from the vehicles, and from other sources;
• vii. The speed limit and Mr. Laverdure’s speed; and
• viii. What people were wearing.

[44] The Court will also review Mr. Laverdure’s evidence.

Actus Reus

Position of the Crown and defence

[45] The Crown submits that the evidence indicates that there were a substantial number of people on both sides of the street, on the side of the road, and in the parking lots.

[46] After the hockey game, people were returning to their vehicles parked in the area. Some were jaywalking from the PMC to P2. Others were walking along Lake Street.

[47] Given this activity, drivers should proceed with caution, even if it means driving below the speed limit.

[48] The defence submits that driving at or just above the speed limit is not dangerous to the public. The defence argues that the existence of pedestrians on the sidewalk and/or in parking lots cannot be a hazard to drivers.

[49] The defence further submits that driving at the speed limit in the above conditions is not dangerous. The defence relies on a number of exhibits, including Exhibit 15, which is an aerial view of the area of the PMC. Ms. Donna Cotnam indicated on Exhibit 15 that only a few people were with her on the sidewalk on the south side of Lake Street. The defence also submits some pedestrians had already crossed the road before the Laverdure vehicle arrived in the vicinity.

My Decision

[50] For the reasons that follow, the Court finds that the Crown has proven the actus reus of the offence beyond a reasonable doubt. That is, the Crown has proven beyond a reasonable doubt that Mr. Laverdure’s manner of driving on January 11, 2015, was dangerous to the public, having regard to the circumstances in which the driving occurred. I will deal with the second necessary element, mens rea, of the offence later in this analysis.

[51] For the detailed reasons that follow, the Court finds that given the activity outside PMC that night, in particular, the number of pedestrians leaving PMC after the hockey game and their location along Lake Street, Mr. Laverdure was driving at a speed on Lake Street that was dangerous to the public.

[52] This finding is based on the manner the Laverdure vehicle was being operated, not the consequences of the driving. As stated by the Supreme Court of Canada in Beatty, at para. 46, the consequence of the death of Mr. Hall has no bearing on the question of whether the offence of dangerous operation of a vehicle has been made out or not. As explained by the Supreme Court of Canada in that case and in R. v. Anderson, 1990 CanLII 128 (SCC), [1990] 1 S.C.R. 265, the consequence may assist in assessing the risk, but does not answer the question of whether the driving was in a manner dangerous to the public. There the Court found that at p. 273: “in some circumstances, the actions of the accused and consequences flowing from them may be so interwoven that the consequences may be relevant in characterizing the conduct of the accused.”

[53] This is not the case here.

[54] Firstly, given the circumstances in the vicinity of the PMC that evening, Mr. Laverdure was driving too fast. The circumstances were such that drivers would be expected to drive cautiously and adjust their speed in accordance with the pedestrian flow.

[55] Numerous witnesses testified the Laverdure vehicles exhaust system alerted them to its presence. These witnesses were pedestrians dispersing to go to their vehicles to head home after the hockey game.

[56] Some of the witnesses’ evidence differs with respect to the number of people at the Lumber Kings’ game, vehicles in the two lots, and pedestrians in the area after the game. However, I find their evidence shows there was substantial pedestrian activity in the area after the game.

[57] I find that Mr. Laverdure’s driving speed was excessive given the pedestrian flow after the game, and that he should have been proceeding cautiously at a slower pace.

[58] I will now deal with the circumstances at the time of the collision and the speed of the Laverdure vehicle to demonstrate why the Crown has proven the actus reus of the offence.

The circumstances at the time of the collision

[59] The civilian witnesses’ evidence of how many attended the game varies significantly. Mr. Ken Brown said attendance was 1100 to 1200. Mr. Chad Leblanc said 600 remained until the end of the game. Ms. Donna Cotnam said there were 800 to 1000 people attending the game.

[60] The evidence also varies on the number of pedestrians who stayed for the whole game and how many were leaving the arena at the time of the collision.

[61] Also, the evidence from civilian witnesses attending the game varied with respect to how many people were in the vicinity at the time of the collision. Furthermore, the evidence of some witnesses varied regarding the numbers crossing in front of the PMC just before the collision. Despite these inconsistencies, the Court finds that there was significant pedestrian flow outside PMC at the time of the collision.

[62] In fact, the evidence indicates that the pedestrian flow was heavy enough that a truck heading eastbound in the south lane of Lake Street stopped in front of the PMC to let pedestrians cross.

[63] The following witnesses described the pedestrian flow on Lake Street around the time of the collision as follows:

• i. Douglas Laydon said the P1 lot was 60% to 70% full and that when he left the PMC lots were still quite full. He observed 50 or 60 people walking to lot P1 and some walking across the street. He got to the corner end of the road near a gazebo and noted that there were 10 to 15 people in front of him. One or two people were in front of him crossing the road and there were people behind him. He attended the hockey game with his son that night and parked his vehicle on the other side of the intersection of Lake Street and Frank Nighbor Street from the PMC as the two lots (P1 and P2) were full and there were no other spots there to park. After reaching the gazebo, he walked for one or two minutes eastwards. He did not testify at the first trial as to the exact locations of the pedestrians. He was not asked at the first trial to map out where people crossed the street, but rather he described in general terms where they were crossing. In cross-examination, he did admit that he was more focussed on his son.
• ii. Allan Roettger attended the hockey game with his friend, Pierre Labre. He testified that people were around him as he was waiting to cross with his friend. His car was parked in lot P2. When he left the PMC, there were about 30 or 40 people around him waiting to cross the street to go to P2. He saw cars leaving the parking lot, people crossing the road, and cars leaving from P1 and exiting the lot. Most vehicles were still in the lot as the game just ended. Pedestrians were coming out of the game. At the time of the collision, he did not see other vehicles around him and there were four or five people on the other side of the road who had already crossed the road. He did not see those people cross.
• iii. Pierre Labre is a season ticket holder and attended the game with Allan Roettger that night. He did not count people but admits that he said there were 20 people around him facing P2 when he was standing at the edge of the curb waiting to cross. At the first trial, he admitted that his memory was fresher and he had testified that no one was in front of him. He saw people getting into their cars and some had already crossed the road and were warming up their cars. He estimated that there were 800 to 1000 people, or maybe more, and it was a big crowd. He stated he was waiting with others on the south side of Lake Street to go to P2 when he heard and saw the Laverdure vehicle. He said that there were 75 to 100 cars left in P1 lot and it was “still pretty full.” He stated there were still around 200 people walking in the lots. A pick-up truck facing eastward had its headlights on, had stopped to let pedestrians cross Lake Street. Mr. Labre got to the yellow line and then he backed up with the rest of the people as he saw the Laverdure vehicle travelling at what he thought was a high rate of speed. P2 was still pretty full when he crossed the street. People had cars with their lights on and were getting ready to leave. He does not remember whether there were one or two people on his right while waiting to cross.
• iv. Chad Leblanc testified that six or seven pedestrians had already crossed to go to P2 and there were two people in front of him waiting to cross Lake Street. He said he saw the Laverdure vehicle brake lights go on after the first impact and at the time of the first collision, there were two people directly in front of him and six or seven further ahead of him and people scattered in the lot going to their vehicles. He was on the edge of Lake Street, looking left. A vehicle had stopped to allow people to cross the street. There were about three vehicles. In front of him, a man and a woman were crossing the westbound lane.
• v. Jared Baillie stated that 20 to 25 people were crossing Lake Street in front of the PMC to go to P2 when he first heard the Laverdure vehicle. He saw five or seven people jump out of the way. At first, he was looking at his wife, but then he turned to see the vehicle. At the previous hearing, he admitted that he was not paying attention and focussing on the Laverdure vehicle and when he turned to look at the vehicle, he saw people getting ready to cross and crossing. People were moving around in the P1 lot. A couple with children walked past him while he was talking. He was looking west and his wife and son were facing him looking east. He said that there were 40 to 50 people around at the time.
• vi. Ken Brown describes walking in a westerly direction on the north side of Lake Street behind his daughter-in-law and in front of another pedestrian. They were making their way along Lake Street to find a gap in the snowbank so they could go to their vehicle in P2. He described the people crossing the roadway just ahead of his crossing. He had his back to the westbound traffic. When he first heard the car, he was not on the curb. When he heard the sound from the Laverdure vehicle, he was in the process of putting his left foot up on the curb.
• vii. Deanna Brown, Ken Brown’s daughter-in-law, described that after the hockey game, people were crossing Lake Street to go to P2. When she had left the PMC, her husband crossed in front of the PMC to go directly to their vehicle in P2, whereas she went with her father-in-law further east to leave P1 at the entranceway rather than attempt to traverse a snowbank. They had to wait until cars finished passing before they could cross to the P2 lot. People were already in P2 who had crossed before her. She crossed Lake Street with Ken Brown and another man, walking single file across the road. They were standing a while before they could cross. It was not quick. She was in the front walking in a westerly direction on the curb side. She testified that she walked in a straight line with her father-in-law and another man behind him. She had her back to the westbound traffic. She stated that she was adjacent to the curb. There was lots of room for cars to go by. Cars were coming both ways. People were around her. She and her father-in-law were in the front of the line. Some people were to the right of her and some behind. She was not sure on how many people were in her area, but she estimated around ten. She described walking westbound nestled tightly to the curb and waiting to find a break in the snowbank so they could go into P2 to their vehicle. There was no sidewalk on this north side of Lake Street at this location. When she heard the Laverdure vehicle she saw a man diagonally to her left crossing Lake Street on the south side of Lake Street. In cross-examination, she appeared certain that the person was Mr. Hall, but in re-examination she said she assumed it was him.
• viii. Craig Edmonds said he left right after the game from the main entrance. He observed people around him going to their vehicles in the PMC lot which was at least ¾ full. Many people were starting their vehicles and leaving the lot after the game. He was at the game with his wife and children. As he and his family were leaving the PMC, he saw 30 people in P1 and there were 10 people on the sidewalk when he and his family were on the sidewalk. He heard the noise from the Lavedure vehicle and saw that vehicle at a 45-degree angle when he turned his body.
• ix. John Milwain said there were 75 cars in P1. He saw a couple of hundred people in the lot and it was “pretty busy after the hockey game.” He attended with this girlfriend. They were returning to their parked vehicle on the other side of the intersection of Frank Nighbor and Lake Street. They were intending to cross at the intersection. They made it to the arbour (which is a decorative structure on the sidewalk on the east side of the P1 lot surrounded by trees) and there were 10 to 15 people around there. He saw 20 people at the intersection waiting to cross the intersection at the time of the collision. P2 was 75% empty and other people were crossing on the street at the time of the collision. When he saw the Laverdure vehicle, he felt that “something bad was going to happen with that amount of people there.” He did admit under cross-examination that he was not counting people and did not remember that the game went into overtime. He did witness a body hit the windshield of the Laverdure vehicle and fly off the vehicle. He also saw the brake lights go on after the first pedestrian was hit. He was not asked to map out where pedestrians were standing on the sketch of the area at the first trial and hence he states his description of the location of the pedestrians at the first trial was in general terms.
• x. Donna Cotnam was heading west and she stated that she had no problem seeing people ahead of her and people on either side of Frank Nighbor Street. She saw a green light at the intersection. There were people ahead of her and people behind her. She was with her husband. She stated she was trying to get out as people and cars were leaving and wanted to get going so she was not sure how many people were around.

[64] The officers who attended the scene after the collision do not have first-hand knowledge of the amount of activity in the vicinity at the time of the collision. Nevertheless, their evidence is relevant to the general circumstances in the vicinity on that evening. The Court gives their evidence less weight as the officers did not observe the activity at the crucial time; i.e., the collision.

[65] Constable Scott Wood, the investigating officer, commented on the number of civilians in the vicinity upon his arrival on Lake Street. He indicated that when he first arrived there were a lot of cars and it looked busy. He said there were 100 to 150 cars in P1 and P2 was full with roughly 100 cars. He admitted that at the first trial he said there were 40 to 50 vehicles in P2. Today he says there were 50 to100 vehicles “could be 51”. He recalls seeing headlights from both lots.

[66] He confirmed that on that stretch of road the speed limit is 50 km/hour. In his view, although he is not an expert witness, Mr. Laverdure’s speed when he applied the brakes and his wheels locked was 50 to 58 km/hour. There are no wide shoulders or raised curbs on the north side of Lake Street in that vicinity. There is a sidewalk on the south side of Lake Street in that vicinity.

[67] Constable Michael Mahon is an Ontario Provincial Police officer who was involved in the investigation. He received a call at 9:16 P.M. He was working the night shift that night. When he arrived at the scene, another officer arrived at the same time. The emergency vehicles arrived soon thereafter.

[68] They were the first responders to arrive and there were a “lot of people everywhere.” He was not paying attention to the number of vehicles around but the lot was still “pretty full.” He said the lot was 3/4 full at this trial. At the first trial, he stated that the lot was half full. He admitted that upon arrival at the scene, his focus was on the collision and the people who were hurt and trying to preserve the evidence.

Manner of Driving: Speed

Civilian witnesses

[69] The evidence confirms that the speed limit on Lake Street in the vicinity of the PMC and at the collision location is 50 km/hour. The Crown concedes that civilian witnesses are not in the best position to estimate speed.

[70] The sound of the Laverdure vehicle caught the civilian witnesses’ attention. As the expert, Mr. Peter Williamson, testified, pedestrians who hear loud noises when the engine is revving up before the gear is shifted can, at times, believe that the vehicle is travelling faster than it really is.

[71] There is some dispute as to the size of the leak in the exhaust system which caused the sound emanating from the Laverdure vehicle.

[72] Constable Stewart Unhola was qualified as an expert in vehicle damage analysis and mechanical examination of vehicles. He testified that the Laverdure vehicle was in proper working order at the time of the collision, having determined that:

• there were no defects to the brakes;
• the steering system was working properly; and
• the all-season tires were in nearly new condition.

[73] In examination-in-chief he indicated that there was a minor leak in the exhaust system and would not have made a loud sound. He never examined the leak.

[74] In cross-examination, he admitted that this was based on what he could recollect at the time after being served with a notice to testify at this trial. He said he believed it was a minor leak based on what he heard. It is a subjective view.

[75] Constable Unhola admitted that he did not measure the hole nor view it. The leak was not mentioned in the vehicle examination report nor in the notes made at the time of inspection after the collision.

[76] He did admit that at the previous trial in September 2016, he did not recall how bad the exhaust system was, and later under cross-examination, he did not think it was a very big leak. His notes for the vehicle inspection do not mention the leak.

[77] On the other hand, Mr. Laverdure testified that it was a sizeable leak. What is significant for this trial, is that the noise emanating from the exhaust system was loud enough to attract the attention of many civilian witnesses who testified at this trial.

[78] The Court finds that the witnesses’ testimonies below confirm:

• a number of pedestrians trying to cross the street;
• vehicles in the parking lots travelling slowly as they exited the lot;
• pedestrians moving about trying to get at their vehicles;
• some jaywalking across the street to get to P2; and
• pedestrians crossing at the intersection.

[79] Although their estimations of speed differ widely, it is noteworthy that these witnesses unanimously observed that his speed did not appear to be responsive to the activity in the vicinity of the PMC at the time.

[80] The Court finds the general circumstances at the time of the collision are best expressed by the observation of Donna Cotnam. She described how she heard then saw the Laverdure vehicle, she believed it was going very fast. When she saw it, she quickly turned her head and her eyes followed it. She yelled at Mr. Laverdure, “slow down,” and believed that he was going too fast on that road given the number of people around. She recalls telling her husband “something good is not going to happen.”

[81] Other civilian witnesses stated the following:

• i. Douglas Laydon testified that the vehicles leaving the parking lot were going significantly slower than the Laverdure vehicle.
• ii. Pierre Labre was crossing Lake Street with others to go to P2. He heard the noise of the Laverdure vehicle and then observed the Laverdure vehicle going at a “fast speed.” He admitted that the Laverdure vehicle was travelling at a constant speed when the vehicle passed him as he was waiting on the side of the road. When he saw the Laverdure vehicle there were people ahead of him crossing to P2. However, his comment was that the Laverdure vehicle was “way too fast for the area.” The brake lights came on after the “first thud”.
• iii. Chad Leblanc believed the Laverdure vehicle was going at a minimum of 60 km/hour and that the Laverdure vehicle caught his eye because of the sound and then the speed.
• iv. Jared Baillie heard the Laverdure vehicle before he saw it. He was facing west talking to his wife along Lake Street on the south side near the arbour structure. The sound caught his attention and then he turned his head and saw the vehicle which he said was driving fast. He believed the vehicle was travelling at 60 to 80 km/hour. He stated that he believed the Laverdure vehicle was going fast, considering there had been a hockey game and people were coming out and moving to their vehicles.
• v. Greg Edmonds, who is a real estate agent, stated he has worked on Lake street for the past 29 years. He testified that he had never seen someone drive a car so fast on Lake Street.
• vi. Allen Roettger was worried that the Laverdure vehicle was going too fast. He was concerned that the Laverdure vehicle may have to stop and would hit the cars ahead that were stopped and had applied their brakes. He heard the Laverdure vehicle rev up and saw it going very fast. He believed it was going 40 to 50 km/hour. He was glad that he looked and stopped, otherwise he could have been hit by the vehicle.
• vii. John Milwain testified that “something was going to happen” because of the number of people there and the speed of the vehicle. He believed the Laverdure vehicle was travelling 70 to 80 km/hour.

[82] The above witnesses’ perception of the speed varies. I do not accept these witnesses’ estimation of Mr. Laverdure’s speed he was travelling just before the collision. They are not experts, but rather laypersons relying on their own perceptions drawn from their own experience. However, they were unanimous that Mr. Laverdure’s vehicle was travelling too fast on Lake Street given the activity there at that time.

Experts

[83] A speed limit is just that: the maximum limit of speed that a motorist is legally permitted to drive. However, speed must be considered in view of the conditions and circumstances of the road.

[84] As will be discussed below, the experts agree that Mr. Laverdure was travelling over the speed limit. At the first trial, Constable Poirier opined that the Laverdure vehicle was going at around 60 km/hour. Peter Williamson, an expert called by the defence, estimated the range was 52 to 55 km/hour.

[85] These figures do not vary significantly. Furthermore, Mr. Williamson opined that Mr. Laverdure could not have avoided the accident if he was travelling in excess of 30 km/hour.

[86] The Court finds their evidence helpful in establishing the road conditions and the Laverdure vehicle’s speed.

[87] The expert evidence demonstrates that this accident occurred very quickly. The evidence from Mr. Poirier indicates that there are 64 metres from the lights at Frank Nighbor Street to the point where the Laverdure vehicle came to a stop. The skid marks were 21.1 metres long. The skid marks commence where Mr. Laverdure would have started to brake after the first impact with Mr. Brown.

[88] Mr. Williamson confirmed that a vehicle travelling at 50 km/hour will travel almost 14 metres per second.

[89] At 52 km/hour, he would be travelling over 14 metres per second, and at 60 km/hour he would be travelling 16 metres per second (about six feet).

[90] If Mr. Laverdure was travelling at 52 km/hour, this accident happened in a matter of four to five seconds. He was travelling at such a speed that he was not able to react to the hazards.

Mr. Williamson’s Expert Evidence

[91] Peter Williamson was called by the defence. His background is mechanical engineering. He is not certified as an accident reconstructionist with the Accreditation Commission for Traffic Accident Reconstructionists (ACTAR), but he maintains his status as a professional engineer. He has been working on accident reconstruction for 28 years and has been involved in investigating over 3200 accidents.

[92] He explained that the speed of a vehicle can be determined using, among other things, the co-efficient of friction. This is determined by examining the skid marks (“slide to stop calculation”) and the throw of the pedestrian (“pedestrian throw”), i.e. the point of impact between the vehicle and the pedestrian and where he landed to a stop. If one does not know the point of impact between the vehicle and the pedestrian then, in his opinion, the variable of the pedestrian throw can affect the estimate of speed.

[93] If Mr. Hall’s pedestrian throw was 26 metres, then he would have been hit further west on the roadway. If the pedestrian throw was 40 metres, then he would have been hit further east. In his opinion, Mr. Hall was likely thrown just over 10 metres.

[94] Given the uncertainty of where Mr. Hall was hit, Mr. Williamson opines that the slide to stop calculation is more reliable.

[95] Mr. Williamson questions Constable Poirier’s co-efficient of friction as it was conducted with a police car, which is a significantly newer car than Mr. Laverdure’s 1997 RAV4. Furthermore, it had better winter tires than the Laverdure vehicle and it has an anti-locking brake system. In addition, the police did not consider that the co-efficient of friction would be lower on the right side of the vehicle where it would have had to travel through snow. Therefore, he would assign a co-efficient of friction of 0.46 for the vehicle, but a lower friction of 0.4 at the right side. One consideration is that the first impact with Mr. Brown was a sliding type of collision along the right side of the Laverdure vehicle and would not necessarily have affected the speed.

[96] Mr. Williamson used the PC-Crash software program to input different figures to simulate the collision.

[97] Mr. Williamson considered that the Laverdure vehicle rotated to the left in his analysis. This rotation was caused by the vehicle’s right tires having to go through a more slippery area of the road.

[98] Mr. Williamson admitted that he ignored the crowning or grade of the road. Lake Street slopes 1.1 degrees in the middle of the road. He conducted the testing on his software program PC-Crash in court. The Court notes that in this simulation, the Laverdure vehicle did not come to rest in the exact spot as observed by the officers attending at the scene of the collision.

[99] Under cross-examination, he agreed the range of speed could be slightly changed as there is .5 seconds of speed loss due to Mr. Laverdure’s removal of his foot from the gas pedal and coasting after he observed the couple trying to cross the street. He attributes only a 0.1 second delay for the delay in pressing the brake.

[100] What is noteworthy with respect to Mr. Williamson’s evidence is that he was not on the ground and at the scene like Mr. Poirier was. He did not observe the state of the road just after the collision. He does not dispute that the Vericom is an accurate instrument to determine the co-efficient of friction.

[101] For the purposes of this decision, Mr. Williamson’s evidence confirmed that Mr. Laverdure would have been travelling slightly over the speed limit. However, other variables could have come into play if they had been considered, such as crowning and delay on the braking upon impact.

Constable Poirier’s Expert Evidence

[102] Constable Poirier completed the level four course to obtain his ACTAR accreditation, and he is accredited as collision reconstructionist.

[103] In his report, Constable Poirier confirmed that he had completed a thorough review of the evidence at the scene. He relied on:

• His technical collision field notes;
• Scene sketch drawn by himself;
• Scene photographs taken by Constable Janet Guy;
• Scene measurements and scale diagrams that he created; and
• Vehicle examination and photographs.

[104] Constable Poirier also reviewed the following:

• Witness statements from Jared Baillie, Deanna Brown, Ken Brown, Pierre Labre and Douglas Laydon;
• Officers’ notes;
• Report management system reports completed in relation to the collision; and
• The Environment Canada website.

[105] He attended at the scene at 12:34 A.M. on January 12, 2015 and noted on page seven of his report: “The road surface was partially covered in very light snow as well as slush. There were small snowbanks along the edges of the roadway on both sides.”

[106] Regarding lighting, Constable Poirier noted that the street lamps along both sides of Lake Street were illuminated and there was artificial lighting from P1 and P2. He says that all lights were in proper working condition.

[107] The Laverdure vehicle was angled facing southwest on Lake Street and it was located at the end of four distinct tire marks leading to their respective tires. The tire marks did not overlap and originated from the westbound lane. The longest tire mark was to the left front tire. It was 21.1 metres in length. The right front tire left an 18-metre tire mark. The left rear tire mark was 3.1 metres long. This tire had snow and slush in front of the contact patch, which was consistent with a locked and non-rotating tire having slid along the road surface.

[108] Mr. Hall’s truck was parked in the access driveway to the P2 lot, which was approximately 1.5 metres from where the Laverdure vehicle came to a stop.

[109] At p. 478 of the transcript from the first trial, which was entered into evidence pursuant to s. 715 of the Code, Constable Poirier discusses the range of speed in his report:

A: The range was 60 to 76.

Q: And, what was that range based on?

A: Alright. Your Honour, this speed range is based solely on, on me. It is completely subjective. If we go to page 17 of my report, there is an area there. What I have done is that I’ve looked, I’ve looked at these tire marks, and I am satisfied that 50 kilometres an hour is the speed of the vehicle at onset. But, I know that it’s more than that, because I look at the damage on this RAV4, and I’m thinking, wow, there’s a lot of energy dissipated in that. There’s energy dissipated on the impact on the side. There’s pre-impact braking, there’s noise. So, it has to be more than that.

[110] At p. 481 of the transcript from the first trial, Constable Poirier states:

A: But, this is me, this is me in my office, like, I’m, I’m really trying to, to give this court as much as I can. Like I’m saying, okay, what, what, does that make sense? Does that make sense here? And, it gives me 60k. Like, those 28 pedestrian formulae give me 60. And, if I look at all the training that I’ve had, and I consider everything that I’ve done so far, in pedestrian reconstruction analysis, that makes sense to me. That makes sense to me that he was hit somewhere around there. So, because this is me, just assuming things, I would be comfortable in using the absolute lowest range that the pedestrian throw formulas give me, of 60. And 60k is what I’m going to try, uh, what I’m comfortable with. It’s like, it’s, it’s more than that. But, 60 is what I’m prepared to go to bat with.

[111] In assuming the throw distance, Constable Poirier does not believe it is logical that Mr. Hall would have been crossing the east end of the entrance to PMC as he was going to his truck which was parked in front of the PMC in lot P2. If he was walking across from the east end then the throw distance would have been higher and the speed would have been 76 km/hour.

[112] In his opinion, that 26 metres is likely the distance that Mr. Hall was thrown from the vehicle after he was hit and where he came to rest. This is based on the shortest most direct path he could have taken from the arena heading to his truck in the P2 lot. He also relied on his pedestrian collision program.

[113] Constable Poirier states that the Laverdure vehicle reacted to the first impact, and once the wheels locked they remained locked until the vehicle came to a full stop.

[114] He relies on research conducted by Dr. Jeffrey Muttart to assist him in determining the location of the Laverdure vehicle when the driver “likely perceived a threat.”

[115] He estimates that the Perception and Response Time (PRT) of a driver in similar conditions compared to the night of the collision is “expected to have been in the range of two seconds.” Using the range of speeds, he estimated pre-impact position of the Laverdure vehicle was approximately 26 to 32 metres east of the impact area when it initiated full braking.

[116] On p. 20, using the slide to stop analysis, he estimates that the range of speed would have been between 49 km/hour (13 metres per second) and 60 km/hour (16 metres/second).

[117] In his report, Constable Poirier indicated that the average low value was 60 km/hour and the average high value was 76 km/hour. However, the figures found on p. 18 of his report were created from the use of a number of formulas found in appendix B dealing with a throw distance of 26 metres. Mr. Williamson indicated that some of these formulas are not effective in this analysis and some are. Constable Poirier simply placed the 26 metre throw distances, used the 28 different formulas, and then averaged the numbers.

[118] As stated above, Constable Poirier concluded the vehicle travelled at most (i.e. the left front wheel) a distance of 21.1 metres with its wheels locked and not rotating. He admitted that there is a curve in the road which turns to the south. Constable Guy took the pictures while she was investigating the crash scene.

[119] In his evidence at the first trial, he opined that the speed was probably 60 km/hour. It would appear that this was not based on any real science but rather his belief having gathered the evidence and seen the figures using the co-efficient of friction and the pedestrian throw numbers. It was a rough estimate based on all the evidence he had gathered.

[120] This can be given some weight given Constable Poirier’s expertise and first-hand knowledge of the accident scene. He was cross-examined by Ms. Fuller, who was defence counsel at the first trial.

[121] However, the lack of opportunity by current defence counsel to cross-examine Constable Poirier at this trial does reduce the weight the Court can give his evidence. Defence counsel was unable to put Mr. Williamson’s conclusion to Constable Poirier, particularly his findings with respect to the point of impact.

Conclusion

[122] In accordance with s. 249(1) of the Code, I find that Mr. Laverdure was driving in a manner dangerous to the public.

[123] Therefore, having considered the above evidence, I find that:

• The Laverdure vehicle was travelling in a range from 52 to 60 km/hour;
• Confirmation from the civilian witnesses that Mr. Laverdure was travelling too fast given the level of activity at the PMC vicinity;
• The Laverdure vehicle had braked when it hit Mr. Hall; and
• There was significant pedestrian traffic.

[124] I reject the defence’s position that travelling the speed limit or just over the speed limit does not the make the driving dangerous.

[125] I find that he was driving too fast given the heavy pedestrian flow in front of the PMC and the close vicinity. I find that he was driving in a manner dangerous to the public and hence the Crown has proven the first element of the offence beyond a reasonable doubt.

Mens Rea

Positions of Crown and Defence

[126] The Crown’s theory is that Mr. Laverdure was intent on getting home. He had returned to his friend’s house as he had forgotten his frozen pizza. Since he lived in Pembroke all his life, he was familiar with this section of Lake Street, that events were held at the PMC, that people cross to go to P2, that people park along Frank Nighbor and in the lots located at that intersection. He should have noticed the lots were full of cars and that there was pedestrian activity as he approached.

[127] He should have taken steps to slow down. He could have put his foot on the brake when he claimed to have seen a couple trying to cross the road. Instead, he just lifted his foot off the gas pedal.

[128] The Crown submits that he would have seen that there were pedestrians in the PMC vicinity. Mr. Laverdure testified that he saw a couple and Mr. Roettger who he knew from purchasing bait from, so he should have seen the other pedestrians.

[129] By driving in this manner, he showed a marked departure from what one would expect from a prudent driver given the amount of people in the area and vehicle traffic.

[130] The defence submits that Mr. Laverdure was taken by surprise when he encountered the pedestrians as the traffic was light before the PMC vicinity as demonstrated by the videos. He was travelling within the speed limit and there was no reason to slow down given the road conditions. The vicinity was dimly lit and that would explain why he did not see the pedestrians in the PMC vicinity.

[131] The defence submits the curve at the intersection also affects visibility as one approaches the vicinity.

Analysis

[132] In deciding whether the Crown has proven the fault or mens rea element, the Court must first determine how a prudent person would drive in those conditions and whether Mr. Laverdure failed to do so. If Mr. Laverdure failed to meet that standard, the Court must then decide whether the driving was a marked departure that reached the level of criminal moral blameworthiness.

[133] At this juncture, it is important to emphasize the Crown’s onus regarding mens rea. It is a high onus. Charron J. in Beatty, supra, stated at paras. 6 - 7:

[6] […] Unlike civil negligence, which is concerned with the apportionment of loss, penal negligence is aimed at punishing blameworthy conduct. Fundamental principles of criminal justice require that the law on penal negligence concern itself not only with conduct that deviates from the norm, which establishes the actus reus of the offence, but with the offender’s mental state. The onus lies on the Crown to prove both the actus reus and the mens rea. Moreover, where liability for penal negligence includes potential imprisonment, as is the case under s. 249 of the Criminal Code, the distinction between civil and penal negligence acquires a constitutional dimension.

[7] The modified objective test established by this Court’s jurisprudence remains the appropriate test to determine the requisite mens rea for negligence-based criminal offences. As the label suggests, this test for penal negligence “modifies” the purely objective norm for determining civil negligence. It does so in two important respects. First, there must be a “marked departure” from the civil norm in the circumstances of the case. A mere departure from the standard expected of a reasonably prudent person will meet the threshold for civil negligence, but will not suffice to ground liability for penal negligence. The distinction between a mere departure and a marked departure from the norm is a question of degree. It is only when the conduct meets the higher threshold that the court may find, on the basis of that conduct alone, a blameworthy state of mind.

Mr. Laverdure’s evidence

[134] Before considering whether Mr. Laverdure had the requisite mental element of the offence, the Court will review his evidence.

[135] Mr. Laverdure has lived in Pembroke most of his life and is familiar with the streets. He says he travels the speed limit, which is 50 km/hour unless otherwise posted.

[136] Mr. Laverdure testified that on January 11, 2015, he went to a friend’s home (Shane Stockey) to help cook wild game. He arrived at his friend’s home at approximately 3:00 P.M.

[137] On the day in question, he did not consume alcohol, prescription drugs or illegal drugs. He brought over two litres of Pepsi to drink at his friend’s home.

[138] At around 8:00 P.M. he went home and then realized he had forgotten his frozen pizza at his friend’s home. Mr. Laverdure’s home is about a 15-minute drive from his friend’s home.

[139] Mr. Laverdure was not aware there was hockey game that night. He was not aware of the pedestrian flow at a hockey game. He has been to approximately six games, only once as an adult, and he did not drive to or from the PMC.

[140] His vehicle is a 1997 RAV4 with approximately 200,000 kilometres on it. He says it had winter tires. Usually during the winter, he has the heat and the defroster on but does not have an actual recollection of turning them on that night.

[141] He said he had a leak in the exhaust manifold that caused a loud clicking sound and the noise was louder to him when he had his windows down.

[142] He said the noise came from the engine and the sound would reverberate from buildings.

[143] He indicated that he suffered from anxiety and panic attacks after the accident. He also indicated he did not recall the details of the accident until two years afterward.

[144] He does not remember his interview with the insurance company adjuster, Ms. Sherry Picotte on January 30, 2015, where he admitted that he did see cars in the P1 parking lot with their reverse lights on.

[145] In the interview, he did not mention that he had seen a vehicle in the eastbound lane stopped with its headlights on.

[146] At trial, he testified regarding the events leading up the collision when he was travelling west on Lake Street:

• He had a red light at MacKay and Nelson Street (which becomes Lake Street further west) and again at the intersection of Lake Street and the Giant Tiger store;
• He remembers shifting from third to fourth gear when the engine revved up;
• He indicated that the exhaust system makes more noise when the revolutions of the tires increase until he shifts into a higher gear;
• He indicates that as he approached the Intersection (i.e. Lake Street and Frank Nighbor) he was watching the lights at the intersection;
• He recalls seeing a stopped vehicle in the eastbound lane with its headlights on;
• As he continued driving, he remembers watching the headlights to see if there were breaks in the light to see if anyone was in front of the vehicle;
• His speed was constant and then he saw Mr. Roettger. He is familiar with him as he has bought bait from his shop for a number of years;
• He looked at Mr. Roettger through his driver’s front door window;
• Mr. Roettger was on south side of Lake Street near the arbour as Mr. Roettger was just crossing the intersection. Mr. Laverdure was concerned as Mr. Roettger had just stepped off the sidewalk and was going onto the road;
• He indicates that Lake Street moves from a brightly lit area east of the intersection to a dimly lit area;
• He says Lake Street is brightly lit east of the intersection as there are many lights from the buildings and the parking lots of Giant Tiger and a medical clinic. Lake Street becomes dimly lit at the bend of the road just beyond the intersection;
• He says the lighting on the road was better than the sidewalks;
• He only noticed Mr. Roettger when he stepped off the curb and does not recall anything else other than him;
• He says he was travelling at a consistent speed and well into the westbound lane;
• He says he followed Mr. Roettger with his eyes and then when he looked up he saw a young couple through the windshield who had stepped out in front of the eastbound parked vehicle. The couple was trying to cross the road. When he noticed them they were halfway through the lane and the young man of the couple had put his arm out to stop the person beside him;
• He noticed the couple half a second after he took his eyes off Mr. Roettger;
• The sight of this couple caught him by surprise, so he took his right foot off the accelerator pedal and put his left foot on the “ dead pedal” (which is a foot rest) ready to apply the clutch;
• He encroached slightly on the right side of his lane as he watched the couple. When he passed them, his eyes were on the front of the vehicle and he heard the thud of a collision;
• As soon as he heard the thud, he applied the brake and clutch;
• Then he heard another thud; and
• He thought he had struck two Giant Tiger carts.

[147] He was shocked when he came out of the vehicle and was told that he had hit two pedestrians.

[148] He does not remember the route he took home from his friend’s home the first time.

[149] He says that he did not see any pedestrians on the sidewalk just before he approached the intersection. He says he did not see anyone crossing at the intersection or at the arbour. Mr. Roettger was standing to the east of the arbour in the area to the entrance of the eastern entrance way to P1. He has no memory of seeing anyone beside him. Mr. Roettger was not standing at the intersection as previously mentioned.

[150] He says he recalls being very concerned with respect to the stopped eastbound vehicle as it seemed odd; it was dark, and it was not a residential area. He asked himself why cars were there.

[151] He says he had been suffering from anxiety prior to the accident and it was aggravated by the collision. It “put him in panic mode.” He had panic attacks after the event.

[152] He does remember telling Ms. Picotte that he had gone up to fourth gear.

[153] His memory is that the parking lots at the intersection were empty and he did not notice any vehicles. He does not recall seeing any pedestrians at the intersection, or the group of people standing on the south side of the intersection, or anyone on the sidewalk on the south side of Lake Street.

[154] The W.(D.) analysis states that if I believe Mr. Laverdure’s evidence that he did not commit the offence charged, I must find him not guilty.

[155] The Court finds Mr. Laverdure’s evidence unreliable and therefore rejects it because:

• The Court questions Mr. Laverdure’s recollection. He cannot even remember having an interview with the insurance adjuster three weeks after the collision, although he did sound a little distraught at the interview;
• At trial, he did not remember that he had been convicted of not possessing a proper valid sticker for his vehicle. He was reminded of this conviction at the lunch break;
• He mentioned seeing vehicles with reverse lights illuminated in the P1 lot in the interview with the adjuster but at trial, he testified that he did not remember seeing them;
• He remembers seeing Mr. Roettger and a couple but not others who would have been near these individuals;
• He claimed that there may have been a snowbank and/or chain link fence that blocked his view but then clarified that it may have only affected his view of the P1 lot;
• His evidence of Mr. Roettger’s location does not coincide with where Mr. Roettger ‘s evidence of where he said he was;
• The Court has concerns that some of Mr. Laverdure’s language was similar to the language of his own expert, Mr. Williamson, such as the effect of the headlights of the stopped vehicle on his ability to see. Mr. Laverdure never mentioned that he saw a parked car with its headlights on in the eastbound lane facing him in his interview with the adjuster. He did admit that there was no glare emanating from the vehicle that would interfere with his visibility. This was a theory provided by his own expert, Mr. Williamson;
• Quite contrary to what one would expect with memory in general, he stated that his memory of the accident was better at this trial than during the period just after the collision. He stated it took him two years to recover from his anxiety regarding the collision and the details of the incident only began to form in his mind after he had recovered from his anxiety; and
• There is no medical evidence that his anxiety and panic attacks after the collision would have affected his memory, although the Court acknowledges that this collision could cause stress to the driver.

[156] Therefore, I do not find his evidence credible regarding the circumstances of the collision and all his actions before the collision. In addition, I question the reliability of his evidence, especially when he cannot even remember meeting with Ms. Picotte. Further, his evidence in and of itself about what occurred that night does not raise a reasonable doubt as to mens rea.

[157] Even though I do not believe Mr. Laverdure, under the W.(D.) analysis, I must determine if, combined with some or none of Mr. Laverdure’s evidence, there is still a reasonable doubt when I consider the rest of the evidence .

[158] As discussed below, after carefully reviewing all the evidence that was admitted at this trial, I find that Mr. Laverdure’s evidence in conjunction with the other evidence at this trial does raise a reasonable doubt and hence the Crown has failed to prove the element of mens rea.

[159] At this point, I will pause to explain the difference between civil negligence and criminal penal blameworthiness and the necessary threshold for dangerous driving. There is an important distinction that requires emphasis.

[160] At para. 8 in Beatty, supra, the Supreme Court stated:

[8] [U]nlike the test for civil negligence which does not concern itself with the mental state of the driver, the modified objective test for penal negligence cannot ignore the actual mental state of the accused. Objective mens rea is based on the premise that a reasonable person in the accused’s position would have been aware of the risks arising from the conduct. The fault lies in the absence of the requisite mental state of care. Hence, the accused cannot avoid a conviction by simply stating that he or she was not thinking about the manner of driving. However, where the accused raises a reasonable doubt whether a reasonable person in his or her position would have been aware of the risks arising from the conduct, the premise for finding objective fault is no longer sound and there must be an acquittal. The analysis is thus contextualized, and allowances are made for defences such as incapacity and mistake of fact. This is necessary to ensure compliance with the fundamental principle of criminal justice that the innocent not be punished.

[161] Mere carelessness is not a marked departure.

[162] Therefore, for the reasons that follow, the Court finds that the Crown has failed to prove beyond a reasonable doubt that Mr. Laverdure had the requisite mental element of the offence.

[163] I will now explain why I make this finding.

[164] After carefully reviewing the oral evidence, the exhibits, the experts’ reports and applying the legal principles, I find that the standard of care displayed by Mr. Laverdure did not reach the level of a marked departure from the standard of the conduct expected of the reasonably prudent person in the circumstances. I make this finding because:

• Of the lighting in the vicinity;
• The darkness in the background of Lake Street before it veers to the left onto Christie Street;
• The curve of the road just after the intersection;
• The distraction created by the stopped eastbound vehicle with its headlights on;
• The dark clothing of the pedestrians;
• The pedestrians crossing Lake Street where there is no marked crosswalk; and
• The lack of signage to warn drivers of possible heavy pedestrian traffic flow.

[165] More specifically, I make the following findings:

• The bend in the road at or just after the intersection did not provide a full view of the PMC vicinity. The dim lighting on Lake Street combined with the virtual absence of lighting beyond the curve as it turns into Christie Street make visibility difficult as it creates a dark background;
• I accept Mr. Williamson’s evidence that the bend of the road on Lake Street could have affected Mr. Laverdure’s vision. He would have had his headlights on Mr. Roettger on the south side of Lake Street and was observing that he had stepped off the sidewalk. In addition, Mr. Williamson stated that the headlight glare from the eastbound vehicle that had stopped could have been distracting and made the rest of the road along with the pedestrians appear very dark.
• Although he may not have remembered that there was a vehicle stopped in the eastbound lane in front of the PMC with its headlights on in his interview with Ms. Picotte, the insurance adjustor, Mr. Laverdure did mention in his testimony that he remembers it distracted him. Mr. Williamson commented that the headlights could cause a glare to oncoming traffic and therefore the surrounding pedestrians would not be as easily observed;
• There was an element of surprise to the incident. The fact that Mr. Laverdure did not brake until after he struck the first victim demonstrates that he had not seen him and was surprised to have hit him;
• This surprise element is also supported by the fact that the victims who were struck were wearing dark clothing (even though one witness, Ms. Deanna Brown, testified that she was told that her father-in-law who was struck and injured by Mr. Laverdure had reflective tape on his coat).
• In addition, Mr. Hall was jaywalking and not crossing at a crosswalk. Mr. Laverdure would not have expected him to be crossing the road. He may have been taken by surprise;
• The surprise element is reinforced by the fact that Mr. Laverdure made no attempt to swerve or brake before hitting anyone;
• The road conditions were wet and slushy;
• There was no evidence of signs in the vicinity warning that events took place in the area and to proceed with caution. Such signs are often found, for example, near schools.

[166] Lighting in the vicinity was not optimum.

[167] The civil witnesses’ evidence regarding lighting corroborate Mr. Laverdure’s evidence that it was dark in the vicinity:

• Mr. Laydon said that it was quite dark so he could not distinguish how many people were crossing the road, particularly the ones wearing dark clothing. He could pick up shadows and silhouettes. Under cross-examination he admitted that he could not see where the pedestrians were crossing the road as it was dark. Further, he said the lots were not lit very well. He said he goes to the PMC often and it is pretty dark there. He felt it was not safe to cross the street before the intersection because it was too dark;
• Mr. Labre said the light was all right but at the original trial said it was pitch black so he did not see the second collision;
• Mr. Leblanc said it was darker on Lake Street where pedestrians were hit than Lake Street facing east, although he said he had no problem seeing people cross the road;
• Mr. Brown testified regarding the decorative lights on Lake Street in front of the PMC. He said it was not “generally bright” or “particularly bright” in this area;
• Ms. Cotnam said that the lot P1 was not very bright and not very well lit;
• Mr. Roettger said the lighting was more like the photograph 51 in Exhibit 21A rather than photo 103 (taken by Constable Janet Guy), a photo that depicts a darker scene;
• Constable Mahon had travelled down Lake Street between 7:00 P.M. and 8:45 P.M. that night and said he did not have trouble seeing;
• Mr. Milwain, who attended the game with his girlfriend, believed that lots were lit up. They had parked on the east side of the intersection in a plaza. The arbour was lit pretty well with street lights and people’s headlights;
• Mr. Edmonds stated that he had no problem seeing as he walked through the lot. He said the lighting was fine while walking through the lot and he had no difficulty seeing people around him or pedestrians.

[168] Regarding lighting, Constable Janet Guy took 104 photos between 1:00 A.M. and 4:00 A.M. on January 12, 2015, right after the accident. The photos except for 103 are dark. In cross-examination, she admitted that in taking the photos she was focussing on depicting the evidence rather than the lighting. She was the technical collision investigator and it was her job to take photos of the evidence. She took pictures of Mr. Laverdure’s vehicle, the damage, the items on the road, and the roadway from different angles. She admitted that the background was dark and the background of the objects she was taking showed a dark area.

[169] She admitted that photo 103 was a different exposure to the photo 104 but were taken two minutes apart at the same angle.

[170] At this point, I will state that I find that the photos presented to the Court were helpful in positioning the evidence after the collision. The photos are very helpful in depicting the scene of the collision site. However, the Court finds that the photos do not accurately depict the lighting at the time of the incident. I rely on Mr. Williamson’s expert evidence in night time photography. He stated that some of the photos that show a brighter scene in the foreground appeared brighter because of the use of a flash on the camera. Furthermore, some scenes were taken with the camera on an “automatic” setting, thereby causing the camera to automatically determine its own aperture and shutter speed to produce a photo with reasonable lighting.

[171] Christopher Blackstock’s evidence is not reliable nor credible. He gave inconsistent statements as follows:

• At the preliminary inquiry he said the PMC lot was 60% full and at this trial he said it was full;
• At the preliminary inquiry, in his statement to the police, and at the first trial he never mentioned that he heard the sound of Mr. Laverdure’s vehicle. He mentioned that he did hear it;
• At the preliminary inquiry he stated there were people ahead of him past the arbour and admits that when walking to the arbour he would not have seen the people behind him;
• He stated that the vehicle was going 100 km/hour, which is not corroborated by any other evidence; and
• In addition, said he eventually admitted to reading one article about this case but after further cross-examination admitted to reading the Ontario Court of Appeal case. On his Facebook page, he made negative remarks about the justice system.

[172] For these reasons, Mr. Blackstock’s evidence has not been considered in this decision.

[173] Regarding the road conditions, I find that they were snowy and slushy as described by Constable Poirier. Most witnesses confirm these road conditions with some further details:

• Mr. Laydon said there was slush on the roadway and the road was slick and too dark to see if the other side of the road was plowed;
• Mr. Leblanc said there was light brown slush on the road;
• Mr. Labre said there were snowbanks on each side of the roadway. He said there was a walkway on the south side then said he does not recall if there was snow;
• However, Mr. Milwain said it was a cold winter night, but the road was dry and there was no slush on the road.

[174] These road conditions affected the co-efficient of friction such that more time would be required for Mr. Laverdue to stop his vehicle.

[175] Constable Poirier also found that:

• Pedestrians struck were on westbound lane on the north side of Lake Street;
• Eastbound vehicles could have headlights shining, and vehicles exiting the parking lots may have affected the vision of westbound motorists;
• The deceased was wearing black clothing with no reflective strips and would not have contrasted with the dark background. This may have affected Mr. Laverdure’s ability to identify the location of the deceased on the roadway;
• The deceased was struck by the Laverdure vehicle in the middle of the westbound lane and propelled westward and came to rest in the westbound lane.

[176] Constable Wood confirmed that there was no evidence of racing, distraction from a handheld device, drinking, drugs, or erratic driving.

[177] There are surveillance videos from east of the vicinity at the intersection of MacKay and Nelson. That area is quite a distance from the collision. There is not much traffic and no evidence of erratic driving, failure to stop at lights, or excessive speed. The evidence was similar at the intersection of Lake Street at the Giant Tiger store, which is a few blocks from the Frank Nighbor intersection.

[178] Therefore, the Court is left with a reasonable doubt with respect to mens rea. As mentioned above, the evidence reveals conduct occurring over mere seconds, amounting to nothing more than non-criminal carelessness.

[179] I refer to in the dicta of Charron J. and Cromwell J. in Beatty that “momentary lapses” in judgment or attention are insufficient to make out the mens rea of this offence.

[180] At para. 54 of that decision, Cromwell J. stated:

[54] In my view, the record does not provide evidence on which a properly instructed trier of fact, acting reasonably, could conclude that the appellant’s standard of care was a marked departure from that expected of a reasonable person in the circumstances. I accept that the driving, objectively viewed, was dangerous. But it must be noted that there was no evidence that the driving leading up to pulling into the path of oncoming traffic was other than normal and prudent driving. The focus, therefore, is on the momentary decision to pull onto the highway when it was not safe to do so. I do not think that the manner of driving, on its own, supports a reasonable inference that the appellant’s standard of care was a marked departure from that expected of a reasonable driver in the same circumstances.

[181] The Court is required to look at what occurred during those moments framed by the overall nature of Mr. Laverdure’s driving and the standard expected of a reasonable driver in the circumstances.

[182] The standard against which the conduct must be measured is the conduct expected of the reasonably prudent person in the circumstances. The reasonable person, however, must be put in the circumstances the accused found himself or herself in when the events occurred in order to assess the reasonableness of the conduct.

[183] A prudent person in those circumstances would have found a dimly lit street with glares from the headlights. It is unlikely they would have seen anyone on the road. They would not necessarily have acted differently than Mr. Laverdure did.

[184] Given the circumstances that existed at the time that Mr. Laverdure was driving in the PMC vicinity, I have a reasonable doubt whether a reasonable and prudent person would have driven differently.

[185] I find that he did not notice that there were people walking to their vehicles and therefore, he did not change his speed accordingly.

[186] He saw Mr. Roettger and watched him as he stepped off the curb and then took his foot off the accelerator when he saw the couple trying to cross. His reaction was to veer to the right to avoid the couple thereby causing the collision. This shows that he was alert to some of the activity occurring in the area that evening and did respond accordingly. It was not a marked departure.

[187] In my view, Mr. Laverdure’s driving on Lake Street was consistent with simply misjudgment of the speed he should travel in an area with poor visibility and a lot of pedestrian activity. The record here discloses an error in judgment with tragic consequences. It does not support a reasonable inference that Mr. Laverdure displayed a marked departure from the standard of care expected of a reasonable person in the same circumstances so as to justify conviction for the serious criminal offence of dangerous driving causing death.

[188] Accordingly, the charge against Mr. Laverdure is dismissed.

Justice A. Doyle

Date: August 28, 2019

COURT FILE NO.: CR-15-92

DATE: 2019/08/28

ONTARIO

SUPERIOR COURT OF JUSTICE

RE: Her Majesty the Queen

v.

Martial Laverdure

BEFORE: Justice A. Doyle

COUNSEL: Caitlin Downing, Counsel, for the Crown

Jodie-Lee Primeau, Counsel for the Accused

Trial decision

Justice A. Doyle

Released: 2019/08/28