COURT FILE NO.: CR-18-097

DATE: 2020 Jun 08

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

DUNHILL TABANAO

Accused

G. Laarhuis, for the Crown

E. Chan and J. Tekenos-Levy, for the Accused

HEARD at Kingston: Evidence heard on November 18, 19, 20, 21, 22, 25, 26, 27 and 28, 2019. Submissions heard on January 13 and 14, 2020. Matter adjourned to March 27, 2020, 10:00 a.m. for decision. As a result of the suspension of Court operations effective March 17, 2020 due to the COVID-19 pandemic, matter was further adjourned to July 6, 2020.

ON CONSENT OF THE CROWN AND DEFENCE, THIS DECISION IS BEING READ ORALLY BY TELEPHONE CONFERENCE WITH COUNSEL AND MR. TABANAO AND INTERESTED FAMILY MEMBERS ACCESSING THE CALL. THE REASONS WILL BE ISSUED IN WRITING.

Tranmer J. (orally)

REASONS FOR JUDGMENT

Index

Page

I. THE CHARGES ............................................................................................................ 4

II. SUMMARY OF THE EVIDENCE CALLED ............................................................. 4

III. OVERVIEW – UNDISPUTED FACTS ....................................................................... 4

IV. ADMISSIONS ............................................................................................................... 6

V. THE EVIDENCE ........................................................................................................... 7

VI. POSITION OF THE CROWN .................................................................................... 47

VII. POSITION OF THE DEFENCE ................................................................................. 52

VIII. THE APPLICABLE LEGAL PRINCIPLES .............................................................. 56

1. Do Not Consider the Consequences ....................................................................... 56

R. v. Beatty, 2008 SCC 5, [2008] SCJ No. 5 (SCC), para. 46 ................................................ 56

R. v. Roy, 2012 SCC 26, [2012] 2 SCR 60 (SCC), para. 34, 35 .............................................. 56

R. v. Buchanan, [2002] O.J. No. 2593 (Ont. S.C.J.), para. 31 .......................... 56

R. v. Alli, 2012 ONCJ 49, [2012] O.J. No. 419 (O.C.J.), para. 88 .............................................. 56

R. v. Sippel, [2016] O.J. No. 7225 (SCJ), para. 42 ........................................... 56

2. Fundamental Principles ........................................................................................... 56

Presumption of Innocence................................................................................. 57

Burden of Proof ................................................................................................ 57

Reasonable Doubt ............................................................................................. 57

3. Dangerous Driving................................................................................................... 57

s. 249 ................................................................................................................. 57

Beatty, paras. 30, 31, 32, 43, 37, 41, 47, 48, 49, 51 .......................................... 58

Roy, paras. 36, 39, 40, 41, 42, 55 ...................................................................... 52

R. v. Chung, 2020 SCC 8, paras. 22-27, 29 ...................................................... 63

4. Criminal Negligence ............................................................................................... 66

s. 219 ................................................................................................................. 66

R. v. Javanmardi, 2019 SCC 54, [2019] S.C.J. No. 54 (SCC), paras. 19-23 inclusive ............ 66

R. v. Bhangal, 2016 ONCA 857, [2016] O.J. No. 5852, (Ont. C.A.), paras. 6, 7, 8, 10 ................ 67

R. v. M.R., [2011] O.J. No. 1017 (Ont. C.A.) paras. 28-31 incl........................ 68

Alli, paras. 83-86 incl. ....................................................................................... 68

R. v. Willock, 2006 CanLII 20679 (ON CA), [2006] O.J. No. 2451 (Ont. C.A.), paras. 29-36 incl................... 70

R. v. Ibrahim, 2019 ONCA 631, [2019] O.J. No. 3939 (Ont. C.A.), paras. 27-34 incl.................. 72

Sippel, paras. 18-21, 23, 25, 37-39 .................................................................... 74

5. Included Offence ................................................................................................... 75

s. 662(5) ............................................................................................................ 75

6. Difference between Dangerous Driving and Criminal Negligence ........................ 76

Alli, .................................................................................................................... 76

R. v. Dunford, [2015] S.J. No. 552 (Sask. Ct. Q.B.), paras. 9-12 incl., 136-147 incl. 76

7. Duty of a Professional Driver ................................................................................. 78

R. v. Parkin, [2004] O.J. No. 5544 (SCJ), para. 22, 27..................................... 79

R. v. Du Jardin, [2009] O.J. No. 636 (SCJ), para. 26 ....................................... 79

R. v. Parmar, [2018] O.J. No. 5645 (OCJ), para. 76, 77, 103, 104 .................. 79

R. v. Rai, [2018] O.J. No. 3643 (Ont. C.A.), para. 31 ...................................... 80

8. Circumstantial Evidence ......................................................................................... 80

R. v. Villaroman, [2016] S.C.R. 1000, paras. 30, 36-38, 55, 56 ....................... 80

9. Do Not Consider Personal Characteristics ............................................................. 81

Beatty, paras. 39-40 ........................................................................................... 81

Roy, para. 38 ..................................................................................................... 81

Alli, para. 64 ...................................................................................................... 81

R. v. Williams, [2017] O.J. No. 571 (S.C.J.), paras. 134-139 incl. .................... 81

10. W.D. Analysis ......................................................................................................... 83

Ibrahim, paras. 37, 38, 42, 47, 48, 49, 62-65 incl. ............................................ 83

Sippel, para. 23 .................................................................................................. 84

IX. FINDINGS WITH RESPECT TO FACTS IN DISPUTE .......................................... 85

X. ANALYSIS .................................................................................................................. 94

1. Evidence Favourable to Defence ............................................................................ 94

2. Dangerous Driving .................................................................................................. 99

3. Criminal Negligence ............................................................................................. 102

XI. DECISION ................................................................................................................. 105

I. THE CHARGES

[1] Dunhill Tabanao is charged with four counts of criminal negligence in the operation of a tractor-trailer unit causing death and three counts of criminal negligence in the operation of a tractor-trailer unit causing bodily harm. All of the charges arise from a collision that occurred on the 401 Highway in the early hours of May 11, 2017.

[2] Dunhill Tabanao elected to be tried by a judge of this court sitting without a jury.

II. SUMMARY OF THE EVIDENCE CALLED

[3] The Crown called five civilian witnesses, Nathan Williams, Bradley Binder and Patrick Sevigny, and also Kevin Guest of GardaWorld and Stephen Fournier of Erb Transport Ltd.

[4] The Crown called police witnesses including experts in collision reconstruction and extraction of and analysis of the engine control module (ECM) of the Erb tractor and location data analysis for the Garda armoured truck.

[5] The Crown called evidence to prove the continuity of the Erb ECM and the accuracy and reliability of the data extracted. In closing submissions, defence counsel conceded the continuity of the Erb ECM. I agree that continuity was proven beyond a reasonable doubt.

[6] The Crown filed photos of the scene as exhibits which included damage to the vehicles involved, expert reports and the post-mortem report for the four persons who died at the scene. The Crown filed a daytime video of police driving along Highway 401 approaching the collision scene. Defence filed a nighttime video of the police doing the same thing.

[7] Defence tendered, on consent, the preliminary inquiry transcript testimony of Parminder Singh, the driver of the Maritime Ontario (MO) tractor trailer unit, and the police statement of Patryck Fijakowski, the driver of the Hyundai.

[8] Defence called Scott Walters as an expert in collision reconstruction and human factors in driver environments and filed his report.

[9] Mr. Tabanao did not testify.

III. OVERVIEW - UNDISPUTED FACTS

[10] The collision occurred around 12:40 AM on May 11, 2017.

[11] It occurred in the westbound slow/driving lane of Highway 401 just north and east of Kingston. At that point, Highway 401 consists of 2 paved westbound lanes and 2 paved eastbound lanes divided by a concrete barrier.

[12] The crash occurred 2300 metres west of the Joyceville Rd overpass, exit 632, on the 401. The police evidence is that 1000 metres west of the overpass, there is a slight 5° left-hand turn in the 401. From that point, the 401 is straight in a westerly direction with a slight uphill for another 1300 metres to the point of the initial impact.

[13] The weather was clear and dry and was not a contributing factor to the collision.

[14] There was no problem with the surface of the roadway. Road conditions did not contribute to the crash.

[15] Beyond the scene of the crash, there was an approximately 3 km line up of vehicles proceeding in a stop-and-go manner. Brake lights, hazard lights and turn signal lights from these vehicles were visible to other drivers east of the scene who were travelling westbound toward the scene of the crash.

[16] Seven vehicles were involved in the crash. The six most westerly vehicles were all positioned in the slow/driving lane for westbound traffic, one behind the other, proceeding in a stop-and-go manner with the other traffic ahead of them. Mr. Tabanao’s unit approached these vehicles from the east.

[17] Patrick Sevigny drove the most westerly positioned tractor-trailer unit which was pulling the CA trailer.

[18] Bradley Binder drove the tanker unit which was behind Patrick Sevigny, to the east.

[19] The next vehicle in the line up to the east was a tractor driven by Parminder Singh pulling the MO trailer.

[20] The next vehicle in the lineup to the east was a Garda armoured truck driven by Matthew Muenz-Till. Nathan Williams was the passenger in the Garda armoured truck.

[21] The next vehicle in the lineup to the east was a Ford Focus driven by Pierre Courville with his passengers Mitchell Caird, Christine Hanrahan and Zachery MacGregor.

[22] Behind the Ford Focus was a Hyundai driven by Patryck Fijalkowski. In his statement to police, he said that the traffic had slowed down. He was going with the traffic travelling at no more than 10 to 15 km/h for about 1 ½ minutes. It seemed like a traffic jam. There was a car in front of him. He noticed the 18-wheeler coming up behind him maintaining a high speed. He kept his eye on it. He said it was way too close for the speed. It had to slow down. He hit the gas of his car and steered to the right off of the highway across the shoulder into the field adjacent to the highway. He drove his car for some distance toward the railway tracks north of the highway until he could go no further. He had just moved out of the way when the 18-wheeler hit the car in front of him.

[23] That tractor-trailer unit was driven by the accused Dunhill Tabanao.

[24] Crown witnesses Patrick Sevigny [CA trailer], Bradley Binder [the tanker] and Nathan Williams [the Garda] described travelling in a westerly direction on the 401 and observing from about the Joyceville overpass the lights of the vehicles ahead of them slowing down and merging into the right-hand lane. They each did the same and were travelling in stop-and-go traffic without incident prior to the crash. The Garda armoured truck had activated its four-way hazard lights.

[25] The evidence is undisputed that Mr. Tabanao’s tractor-trailer unit had its cruise control on and was travelling at a speed of 62 miles an hour when it collided with the rear end of the Focus. The evidence is that there was no braking by Mr. Tabanao’s unit prior to impact, and for reasons that I will explain, I find that there was no evidence of any evasive manoeuvre such as steering taken by Mr. Tabanao. The evidence shows that the westbound passing lane was clear of vehicles for some distance ahead of the CA unit.

[26] There were no visual obstructions to westbound drivers approaching the collision scene from the east.

[27] The initial impact between Mr. Tabanao’s unit and the Ford Focus was square on and drove the Ford Focus into the rear of the Garda armoured vehicle. Mr. Tabanao’s unit also hit the Garda vehicle forcing it to impact the rear of the MO trailer. Mr. Tabanao’s unit also crashed into the rear of the MO trailer. The MO trailer was forced into a collision with the tanker causing it to buckle. The tanker was forced into a collision with the rear of the CA trailer.

[28] The Ford Focus was buckled like an accordion as a result of its impact by the Erb unit and being forced into the rear of the Garda. It burst into flames.

[29] The occupants of the Ford Focus Pierre Courville, Christine Hanrahan, Mitchell Caird and Zachery MacGregor were killed instantly by the force and blunt trauma of the collisions.

[30] The Garda armoured truck was smashed open by the impacts. Its contents were scattered along the highway. Its driver Matthew Muenz-Till and its passenger Nathan Williams were seriously injured. Defence conceded that each of them suffered bodily harm.

[31] Bradley Binder was also injured. For reasons that I explain later, I find that he suffered bodily harm.

IV. ADMISSIONS

[32] The admissions made in this trial were as follows.

[33] The four occupants of the Ford Focus were killed as a result of the collision. These four people were Pierre Courville, age 40, the driver, Christine Hanrahan, age 43, the front seat passenger, Mitchell Caird, age 25, in the rear driver’s side seat, and Zachary McGregor, age 22, in the rear passenger side seat.

[34] Two other persons suffered bodily harm, Matthew Muenz-Till and Nathan Williams, the driver and passenger respectively of the Garda armoured vehicle. Bradley Binder was injured and it is disputed as to whether his injuries amounted to bodily harm. For the reasons given below, I find that he too suffered bodily harm.

[35] Utterances made by Mr. Tabanao to police officer Sgt. Lougheed at the scene are admitted to have been voluntarily made without the necessity for a voir dire.

[36] The date, time and location of the collision is admitted.

[37] Counsel agree that in accordance with s. 662(5) of the Criminal Code, the offences of dangerous driving causing death and dangerous driving causing bodily harm are included offences to criminal negligence in driving causing death and criminal negligence in driving causing bodily harm.

[38] Except for the issues upon which I will make findings of fact in Part IX of these Reasons, the facts are not substantively in dispute.

V. THE EVIDENCE

Patrick Sevigny

[39] Mr. Sevigny has been a truck driver for 21 years. For the past 3 years, his route has been between Montréal and Toronto on the 401, 3 trips per week, consisting of 10 to 12 hours of driving per day.

[40] Like the Mr. Williams, Mr. Binder and the police testimony, he testified that between May and November, there is always construction on the 401. There are lots of times of reduced lane and stop and go traffic.

[41] He was the driver of the blue Eagle tractor pulling the CA trailer, number 576, the most westerly vehicle involved in the crash. He had a light load, 5000 lbs.

[42] He thought the collision occurred around 10:30 or 11:00 p.m. Nothing turns on this apparent discrepancy.

[43] He testified that he first noticed what he called the Brinks truck at around Mallorytown although he is not quite sure where it came onto the 401. Nothing turns on this discrepancy with Mr. Williams who said that the Garda came onto the 401 at Gananoque. He had passed it as it came onto the 401. He had also passed the MO trailer and the tanker prior to the scene of the crash. These vehicles were all westbound.

[44] At the time of the crash, his vehicle was being followed by the tanker, then the MO, and followed by the Garda truck at the end of that line. No one passed him after he had passed these 3 vehicles. He was travelling at 105 km/h.

[45] He testified that traffic was not busy that night up to the point that he saw the lights ahead of him. It was a clear night. He had no trouble seeing the vehicle lights ahead of him. This was at a point where the highway was straight and slightly uphill.

[46] He testified that as he passed exit 632, the Joyceville Road overpass at the Husky station, east of the scene of the crash, there was 2 to 3 km of straight road ahead of him. He saw traffic lights up ahead. He was driving in the right-hand driving lane where he had been since passing the other three vehicles. When he first noticed the brake lights ahead of him, he was 1 to 2 km back. He said the brake lights were visible because they were “more intense”. The car in front of him had its four-way flashers on.

[47] He testified that a couple of kilometres before he reached the traffic with the lights on, he activated his four-way flashers. The vehicles ahead were stopped.

[48] At about 1 km behind this traffic, he applied his brakes and downshifted. He downshifted, slowly, through 13 gears, because he knew he had time to do so and slowed his vehicle to a stop. He testified that this was about 1 km from the slight left-hand turn east of the scene. This coincides with the testimony of SSgt Doolan as to the location of the crash.

[49] When he stopped, he said there were 30 vehicles in front of him in both lanes, but no one to his left in the passing lane. He was stopped for about one minute before the tanker and the MO came in behind him slowly. The tanker stopped about 5 feet behind him.

[50] Through his rearview mirror he observed that the truck behind him was the tanker with its four-way flashers on and that the truck behind the tanker pulling the MO also had its four-way flashers on. These vehicles had no difficulty slowing down and coming in behind him. He remembered these vehicles because he had passed them previously.

[51] There was no vehicle to his left in the speed lane. No vehicle had passed him to his left. From this evidence and that of Mr. Williams and Mr. Binder, the court concludes that from beside Mr. Sevigny’s truck back, easterly, to the scene of the impact between the Erb and the Ford, there were no vehicles in the left-hand passing lane.

[52] The MO was stopped for 5 to 10 seconds before Mr. Sevigny heard a bang.

[53] Then, he heard a bang, just one. There had been no other sound.

[54] He looked in his rearview driver side mirror and saw a big cloud of dust. Then he saw a truck jackknifed come out of the dust. It was in an “L” shape, with the Erb tractor in the slow driving lane and the trailer in the passing lane. He could read the word “Brossard” on the side of the trailer. It was behind the MO truck. That Erb vehicle was coming very fast in his direction. He saw the car blow up in a ball of fire coming out from the front of that truck.

[55] He stepped on the gas of his vehicle to try to avoid being struck by the tanker. He steered to the right to avoid striking the vehicle that was in front of him. At that point in time, the traffic in front of him started to move forward. The tanker hit him so fast before he could get ahead.

[56] He got out of his vehicle and went back to try to help the people in the car. He spoke to the driver of the tanker. He burned himself trying to help the people in the car and he expressed emotion when describing that he could not help them because of the intensity of the fire.

[57] He also tried to help the driver of the armoured vehicle, but he could not do so.

[58] He went to try and help the driver of the Erb/Brossard. When he opened the door to that cab, the driver was not inside. He found the driver outside of the vehicle.

[59] He asked Mr. Tabanao if he was okay.

Sevigny

Are you okay?

Tabanao

Yeah, yeah I’m okay. I’m sorry, I’m going to jail. I’m going to jail.

Sevigny

Why you saying that? It’s an accident, you know, accidents happen.

Tabanao

No, no, it’s not the first time it happens to me.

Sevigny

What did you do?

Tabanao

[I] bent to pick up something and then that … that happened.

Sevigny

What, you bent for 15 seconds [Why, you bend down for 10 minutes, like you cannot see us far away that it was stopped? It’s not the first time that arise to you? I don’t understand. You are dangerous. Don’t drive truck anymore.

[60] When asked why he said that, his answer was:

Because it was obvious that we were stopped, like you have a straight line 2 km, 1 km, and you can see everybody on the four flashers and stopped. I don’t understand why you bend at that moment to pick up something. That’s why I said… But you know, it’s only me, my judgment.

[61] He went on to say because it was a clear night and a straight lane going uphill, all stopped with the intense light of the braking, four flashers, like it’s impossible you don’t see us, impossible, unless you are sleeping or you are bending for 15 minutes.

[62] He explained that his use of “15 minutes” was meant as an argument – an expression of exacerbation. It was not meant to be taken literally. He said I don’t understand how you can cause an accident like that.

[63] He testified that in his experience as a truck driver, it is very dangerous to bend down and pick something up while driving. He testified that if you were to do something like that you make sure there’s nobody in front of you for a long way, and even then you do it while keeping your eyes on the road. You don’t bend down and take your eyes off the road.

[64] He testified that had he been operating the Erb truck, coming upon the traffic that was there, when he saw the lights he would have reduced his speed and stopped, like everybody was supposed to do. “I would not bend if I see traffic stop and on four-way flasher. I wouldn’t bend but still looking in front of me. But I would not bend.”

[65] Mr. Sevigny was an impressive witness. He was responsive, direct and calm in giving his testimony. There was no embellishment or exaggeration or anger. He testified in a matter of fact manner responding directly to the questions asked. There was no hesitation in his answers or uncertainty. There were no internal or external inconsistencies in his testimony. His version of events was not challenged or contradicted. He was appropriately and genuinely emotional when describing the car on fire and trying to help the people but being unable to do so. Like Mr. Williams and Mr. Binder the obvious depth of his emotion was significant.

[66] I have no hesitation whatsoever in accepting Mr. Sevigny as a credible and reliable witness.

Bradley Binder

[67] Mr. Binder has been a heavy truck driver for 15 years, the last six years driving a tanker trailer. All of his experience is full time on major highways. He operated the Carry tanker unit.

[68] He testified that he had travelled this section of the 401 four or five times previously with the tanker.

[69] He testified that it was a nice clear night. There was not a lot of traffic. There was no traffic for some distance ahead of him, ½ to 1 mile.

[70] He was travelling in the right-hand lane.

[71] Just as he was going under an overpass, he saw a bunch of four ways and brake lights on up ahead of him. There were four or five transports with very noticeable flashers which could be seen from a long way away. That told him that something was going on up ahead.

[72] He started to slow down by taking his foot off of the accelerator. His truck weighs 30,000 pounds empty. Seeing the four ways up ahead, told him that the traffic is slower and he didn’t want to pile into it. He had no trouble slowing his vehicle down. He was in the slow lane as he went under the overpass.

[73] When he caught up to the traffic, he stopped. The traffic was then stop and go. There may have been a couple of vehicles up ahead of him trying to get into his lane from the fast lane but there was no one beside him. No vehicle tried to pass him in the left lane from the time he slowed down. No other vehicle was observed to have trouble stopping.

[74] He testified that it was routine to come up to traffic at a construction site. He sees it all the time. People put their four ways on to let people know that something’s going on.

[75] He put his four ways on.

[76] He was in the stop and go traffic for between two to five minutes. He could see the truck ahead of him, and also cars trying to merge over.

[77] He saw a semi behind him in his rearview mirror.

[78] He testified that he is responsible to be aware of what is going on around him. His main goal is to be safe and to get home.

[79] He heard a bang. Looking in his driver rearview mirror he saw an explosion which created a bright light. He saw a tractor and trailer at an angle with the name “Brossard” on it. In cross-examination, he testified that he could read the word “Brossard” at the time he was looking in his rearview mirror. It was suggested to him that it was only after the crash that he read that word. He responded calmly but firmly “Sir, I do this every day. I’m not confused”.

[80] He stepped on his brakes hard.

[81] He heard another boom, and he was hit from behind. Despite his brakes being on hard, that impact moved him 20 to 25 feet ahead into the semi in front of him, the CA transport.

[82] He saw the Erb truck with the Brossard trailer hit the Maritime Ontario behind him.

[83] He testified that at highway speed of 100 km/h, a safe following distance is 300 to 400 feet because it takes a long time for one of those trucks to stop.

[84] He testified that if someone were to say that he could not see because he was following a truck then that person was following the truck too closely.

[85] He testified that at the 5 – 10 km/h he was travelling in the stop and go traffic, he was 20 to 25 feet back from the truck in front.

[86] When his truck hit the transport in front of him, he was thrown back so hard that it broke the back of his driver seat and he fell into the sleeper part of his cab.

[87] He drove his vehicle forward over to the shoulder. He and the driver of the vehicle he had struck went back to see if they could help. He saw a car fully engulfed in flames. There was nothing they could do.

[88] He and the other driver saw the driver of the MO and Erb trucks. The driver of the Erb truck, admitted to be and identified as the accused, said that he was the driver of that truck, “it’s my fault”, “I did this”, “I’m probably going to jail aren’t I”. He also told Mr. Binder that he was reaching for his cell phone. He looked up. The traffic was stopped. The MO driver was there to hear this also.

[89] It was pointed out that Mr. Binder had told the police officer in his statement given at noon the next day at the scene, that the accused had said he was reaching for “something”. I find that this is a minor discrepancy that does not impact negatively on the credibility and reliability of Mr. Binder as a witness.

[90] They attempted to assist the driver trapped in the armored vehicle, but they could do nothing but talk to him.

[91] Mr. Binder’s injuries were to his neck, back and knee. He had surgeries to kill the pain caused by the nerves in his neck. He required physiotherapy. He required counselling for PTSD.

[92] He continues to suffer from symptoms of PTSD. He went on to Worker’s Compensation. When that settled, he is in receipt of disability insurance for the injuries suffered in the crash. He has been unable to return to his work as a driver. He agreed with the suggestion by defence that his harm is more mental than physical.

[93] In cross-examination, he testified that he thought the collision occurred just before midnight but said he was not 100% sure.

[94] He testified that from the overpass to the scene of the crash was roughly 1 mile. The highway was flat, with no hills. He did not recall any curvature. He had been driving at about 60 mph. He testified that it was not far past the overpass that he noticed the flashers and brake lights up ahead. He slowed because he saw the flashers and brake lights on the CA transport which was ahead of him. He confirmed that he followed that vehicle for up to 5 minutes in the stop and go traffic. During that time, he did come to full stops, and also moved at no faster than 5 mph. The MO transport behind him was also travelling at stop and go pace. He was not concerned about its speed.

[95] He testified that when he saw the Brossard trailer through his rearview, it was out of control.

[96] When it was suggested to him that he felt a “push”, by way of impact, he clarified that he felt a “jolt”. Again, he said this calmly and firmly.

[97] In cross-examination, it was pointed out that in his statement to police, he did not mention the cell phone or that the accused had said he was probably going to jail. He agreed and pointed out that he had had one hour of sleep when he spoke to the police. He had also experienced 12 hours earlier a horrendous fatal crash. In re-examination, it was pointed out that he did tell the police that the accused had said he was reaching down to pick up “something”. I find that nothing turns on these minor discrepancies.

[98] Mr. Binder was a most impressive witness. He was responsive, direct, certain in his answers, firm and calm. There was no indication of exaggeration or embellishment. The two minor discrepancies in his police statement compared to his testimony as to what the accused said do not impact negatively on his credibility and reliability. He was not seriously challenged in any significant fashion on any significant aspect of his testimony. I am completely satisfied that he is a credible and reliable witness.

Parminder Singh

[99] I will quote from excerpts from his preliminary inquiry testimony. He testified with the aid of a Punjabi interpreter.

Q. Parminder, what's your age?

A. Thirty-four.

Q. And we understand that on May 11^th, 2017, you were driving a Kenworth truck?

A. Yes.

Q. And it was pulling a Maritime Ontario trailer?

A. Yes.

Q. How long had you been licensed as a truck driver.

A. Four years.

Q. Is that four years from today?

A. Yes. From today.

Q. Okay. How much experience do you have driving on the 401 highway?

A. Two years.

Q. And in those two years how often would you be on the 401 Highway, or how many miles.

A. I do round-trip five times in a week. Toronto to Montreal.

Q. Tell us what happened on the 11^th of May.

A. I was driving from Montreal to Toronto, it was about one, one-thirty in the morning – morning hours. The left lane was closing whereas the – 632 was running properly.

Q. I – I didn’t understand that 62 is running properly.

A. Six-three-two exit number.

Q. Oh, I see. And is that the overpass at Joyceville where the Husky gas station that you’re talking about?

A. Yes, just crossing there.

Q. Okay, continue from there.

A. So the left lane was closing and every truck was changing lane to the right one.

Q. And how did you know that the left hand was closing?

A. Construction has placed the indicator which is to advise that construction is ahead.

Q. So continue, tell us what you saw the other traffic do and what you did.

A. All the traffic was moving slowly and I was also moving slowly after changing lane into right.

Q. How slowly.

A. Five to ten mile.

Q. Is that miles per hour?

A. Yes.

Q. Was it continuous going five to ten miles an hour?

A. No.

Q. What was it?

A. Sometimes it stopped, sometimes it started or resumed.

Q. Did you have any difficulties seeing the slow traffic ahead of you?

A. No.

Q. How far back did you start to slow?

A. Like seven or eight-hundred meters before.

Q. Why did you start to slow at seven to eight-hundred meters before?

A. Because the brakes lights were visible.

Q. Whose brake lights?

A. Trucks. Ahead of me.

Q. Did you see any lights other than brake lights?

A. No.

Q. So, continue from there.

A. When the traffic was moving slowly, my truck was struck from the – from behind.

A. I got off from my vehicle and had a look.

Q. And when you had a look, what did you learn?

A. A company truck had struck me from behind.

Q. What kind of truck?

A. ERB company. ERB.

Q. Okay. Did you see where the ERB truck came from?

A. It was behind but I have not seen from where it came.

A. There was a security van following me. The one which usually carries the cash.

Q. How closely was the security van following you?

A. Fifteen to 20 feet.

Q. Is that when you were travelling on the highway – like where was it when it was that close, 15 to 20 feet.

A. The moment I started driving slowly.

Q. Okay. And what happened to the security van?

A. It tumbled upside down just behind my truck.

Q. Did you see what caused it to tumble upside down?

A. The truck which hit my truck has prior to that, struck that vehicle.

Q. Did it hit the security van before it hit your truck or after?

A. Before.

A. My truck hit into the truck ahead of me, I had a – I went to see that.

Q. When you got hit were you moving five to ten miles per hour or were you stopped?

A. It was stopped.

Q. Do you recall if you had your brakes on or off.

A. It is normal that while stopped, brakes are automatically on.

Q. Did – what lights did you have on?

A. Brake light and all other lights…

Q. And what are the other lights that…

A. …on the trailer. Safety lights, like taillights.

Q. Did you talk or hear the ERB driver say anything?

A. I did talk to him.

Q. How did you know who the ERB driver was?

A. He was wearing uniform.

Q. And anything else that – what makes you think he was driving the ERB truck?

A. I asked him is it your truck, he said yes.

Q. And what truck were you referring to when you asked him if it was his truck.

A. ERB truck.

Q. Okay. And you said he was wearing a uniform, do you remember what his uniform – what colour?

A. Grey and ERB written on the pocket.

Q. What else did you say to him or did he say to you.

A. I said “What happened?” and he said “I was a little bit sleepy” and when I confirmed he said “No I was not.”.

Q. Explain that, I don’t understand.

A. When I asked him what happened he said that I was falling asleep, when I inquired whether he was sleeping he said no.

In cross-examination, Mr. Singh testified,

Q. Was there construction going on on the same stretch of the Highway when you were driving back from Montreal to Toronto on Tuesday?

A. Not on that day.

Q. Thank you. So you would agree with me that on May 11, 2017, you noticed there was construction going on that was the first time you realized that on that stretch of 401 going west.

A. First time I saw that.

Q. And the reason you knew that was because first, you saw the construction signs on the side of the road?

A. Yes, before the traffic, construction has placed a sign with a L.

Q. What colour was the construction sign?

A. Yellow.

Q. How many did you see on the side of the 401 before you slow down to five to 10 miles per hour?

A. I have seen one sign and before crossing that I had already moved in the next lane.

A. That sign was providing information that the left lane is closing

Q. Okay so when you're approaching the sign, okay, you were travelling at the speed limit which is 100 kilometres per hour, do you agree?

A. Yes.

Q. You saw the sign, okay, and that's when you slowed down, would you agree.

A. Yes.

Q. You saw the sign, you slow down and by that you meant – okay, I'm going to suggest to you you meant you take your foot off the gas pedal?

A. I had moved from gas and applied – started applying brakes.

Q. Softly, not hard.

Q. Started applying the brakes softly, not hard.

A. Slowly.

Q. Okay. What’s in front of you at that time.

A. There wasn’t any vehicles ahead of me, but when I saw the lights at distance, I slowed down.

Q. Were you able to make out what was the vehicle in front of you.

A. There was a container trailer.

Q. Can you tell us whether the container - let's start - that tanker-truck - let's call it the tanker-truck in front of you, was the tanker-truck had its four way flashers on.

A. No.

Q. When you first saw the tanker-truck, did you notice if the tanker-truck had the brake lights on.

A. Yes.

Q. So you slow down, you approached the tanker-truck and am I correct that you eventually stop behind the tanker-truck?

A. It wasn't an abrupt stop but slowly and gradually it stopped after some distance.

Q. You had no problem stopping behind the tanker-truck is what I'm saying.

A. No.

Q. You stop, you look at the front, you look at the tanker-truck. Did the tanker truck have the four-way flashers on?

A. I don’t remember.

Q. Did you have your four-way flashers on.

A. No.

Q. Why not?

A. Because traffic had slowed down and it has been slow for awhile.

Q. So from that point on if I understand you correctly, it was stop and move, stop and move.

A. Yes.

Q. And I'm also going to suggest to you that from that point on after you stop, you could see the - let me ask you a different way okay. By the time you stop your - your truck, were there two lanes still open or was that down to one lane.

A. Two lanes.

Q. How many signs of construction have you observed?

A. The same arrow sign, which I observed, I have not crossed that and the accident has already happened.

Q. Sorry, I need you to ask you to clarify. So far, okay, you stop behind a tanker-truck the traffic you have described as stop and move, okay? And I specifically want you to understand this was before the accident happened.

Q. You stop behind the tanker-truck, you described the traffic as stop and go. This is before the accident happened, am I right.

A. Yes.

Q. Up to this point, okay, when your truck is still slowing down, stop and go, have you seen at least one construction sign?

A. One.

Q. What's behind the security van.

A. There were cars however I haven't counted how many were there.

Q. Besides cars, any other vehicles you saw at that time?

A. No.

Q. You told the Crown Attorney that you started to slow down like, 700 or 800 meters before the slow traffic.

A. Yes.

Q. If I - I am going to suggest to you that would be seven or eight-hundred meters after you saw the first construction sign, would you agree?

A. No, construction was at a distance from that point, I had started slowing down way ahead. [This is shown in Ex.5, Photo 3]

Q. I'm not talking about the construction, I'm talking about the first construction sign you saw, okay?

A. After observing brake lights I slowed down and the construction sign was far away from this spot.

Q. You said the construction sign was further down on the road after you see the brake lights on.

A. Yes.

Q. Can you help us by telling us how far down in terms of distance before you saw the construction sign.

A. I don’t have a great idea however 800 to 900 meters away.

Q. And just to be clear, you saw the first construction sign before the collision happened?

A. Yes.

Q. How did you know there was an accident behind you.

A. When my truck was hit from the - from - from the rear and it got off the road, I disembarked from my truck and then I saw it.

Q. You felt you were hit.

A. Yes.

MR. CHAN: Can you point out the brake lights for us. The witness just pointed at four different spots and those are at the bottom edge of the - of the trailer in the back.

THE COURT: Below the open door.

MR. CHAN: Q. If it makes a difference to you, what about the taillights at the back of your trailer, would there be taillights in addition to the - the brake lights?

A. Yes.

Q. Can you point those out for me please.

MR. CHAN: The witness just pointed across the top edge of the trailer.

MR. CHAN: Q. And how many - can you - can you tell us how many were there?

A. Five.

Q. Five. Across the top.

A. Yeah.

Q. Were those five taillights on?

A. Yes.

Q. Just to be clear, how many brake lights were there at the bottom edge of the trailer?

A. Two.

Q. Just to summarize again, there would be two brake lights and two additional lights at the bottom edge of the trailer and five taillights across the top edge of the trailer.

A. And there is one light - sensitive light on the bottom as well.

Q. … he said “I was a little bit sleepy” …

A. Yes.

Q. And then you asked him again where he was sleeping?

Q. And no was his exact response?

A. “Never never never”, he was talking in a fast pace and then he moved away.

Q. “Never never never”.

A. “No no no, never never never.”

Q. Again, are those his exact words.

A. Yes.

RE-EXAMINATION BY MR. LAARHUIS:

Q. Looking at that last photo of the back of your trailer, also along the bottom we see red and white something, what is that.

A. Reflectors.

Q. And they run the full length of the bottom of the trailer?

A. Yes, all around the bottom.

Q. And at the very top of that photograph we see some - what looks like something white stuck on the back, what's that.

A. Same reflector.

Q. Okay, and where – they are on both sides?

A. Yes.

Q. And in your experience when you see those types of things on other trailers, how visible are they to you as a driver when you're coming up on them?

A. If there is a light reflected, one can make out that a trailer is stationary or parked or standing.

Q. What do you mean.

A. It means that one can see or make out that there is something in front of you.

Nathan Williams

[100] He was the passenger in the GardaWorld armoured vehicle. He will have worked for the company for 22 years as of August 2020. At the time of the crash, he had worked on that route for three years, all night time driving, with shifts three days per week, and involving 5 to 6 hours of driving each day in all seasons.

[101] The route commenced in Peterborough from where the truck travelled to Belleville, then Gananaoque and then back to Peterborough.

[102] He testified that between May and November, there was always a lot of construction on the 401. He experienced slowdowns for accidents and weather hazards which occurred at least once every two weeks.

[103] His role was always as passenger.

[104] He testified that the lights on the truck were constantly on. He testified that they always put the hazard lights on when they slow down. He can see that they are on because they are very bright and they light up the inside of the truck. He testified that on this day, the hazard lights were on prior to the collision. He testified that the hazard lights are left on until the truck is clear of whatever the problem is on the highway. He testified that the hazard lights being activated are always a safety concern, so that people know that they are slowing down.

[105] He testified that they need to know and be aware of where people are around them.

[106] The company rules require them to activate the hazard lights when they are in construction or stopped, even if just outside the company office.

[107] He testified that the hazard lights are very bright when activated at the rear of the truck. They do a safety check of the truck always, both he and the driver, every time they work at the start of every shift. If the lights on the vehicle do not function properly, they do not take the vehicle onto the route.

[108] He testified that they checked the fog lights, the headlights, the rear lights, the clearance lights across the top of the vehicle and the hazard lights. The clearance lights across the top of the vehicle are always on. They do not change with the application of brakes. (Ex. 5, Photo 19). They are red and rectangular.

[109] He testified that he was 100% confident that they did that safety testing and that the lights were working on the day of this crash. The hazard lights are very bright, yellow in the front and red in the rear at each corner of the vehicle. The front hazard lights reflect off the back end of the vehicle in front which in this case was the white rear end of the MO trailer- with blue and red lettering. He was not challenged on this evidence at all.

May 10 – 11, 2017

[110] After they had left Napanee, they travelled eastbound on the 401 to Gananoque. He observed construction on the outskirts of Kingston.

[111] After leaving Gananoque, they travelled westbound on the 401. The weather was clear. There was a full moon. The driving conditions were excellent. There was very good visibility. He could see the trees to his right.

[112] After about 10 minutes, as they were getting close to Joyceville, he noticed traffic start to fill up. He saw transports, more than one, ahead of them with their hazard lights on. Mr. Williams was travelling in the left lane at that point. They moved over to the right lane and slowed down. The traffic was starting to travel at a stop and go manner. They put their hazard lights on just before they caught up to the traffic.

[113] They slowed down gradually as they merged over to the right into the stop and go traffic. He observed no one having trouble slowing down. Their truck had no problem stopping. The truck ahead of them was a transport truck. He saw its overhead door. It had its hazard lights on and they were flashing and they were bright at the bottom of the back of this transport. He testified that he believed that the transport in front of them also had its clearance lights on. (See Ex. 5, 5 circular red lights across top of trailer rear). He could not see past the truck in front of them. He is not sure how close to the truck in front they were.

[114] He testified that he was talking to the driver and joking. He was looking ahead.

[115] After about 5 minutes in the stop and go traffic, travelling between 5 and 10 km/h, when moving, there was a “large bang, and the chaos started”. He felt the truck lift up, the windshield shattered, the truck went up off of the ground. He pointed out that the truck is very heavy, but the impact lifted the whole truck. He was jarred back and then forward. He could not recall anything after that for a period of unknown time.

[116] He testified that there was just 1 big impact, no prior impact.

[117] He thinks his truck hit the truck in front of them.

[118] When he regained consciousness, he observed his partner who was initially unresponsive. He was very worried about his partner’s condition.

[119] The vehicle came to rest on the driver side. He was suspended, hanging from his seatbelt.

[120] He got out and went to try and help the people in the car. But the car was engulfed in flames and there was nothing he could do.

[121] He testified that before the big impact, his vehicle had not hit any vehicle and had not driven over any vehicle.

[122] Mr. Williams suffered a large gash over the back of his head and his right arm was injured. Ex. 11 is his medical records for his hospital stay at KGH, from May 11, 2017 until May 19, 2017. He suffered vertigo. His head gash was treated with staples. He found it difficult to walk and experienced psychological trauma. He continues to have nightmares about not being able to help people. It took him six months to fully recover. He did return to work, but it took a couple of months before he was able to drive this route. His right side is still sore.

[123] In cross-examination he agreed, that this part of the 401 was not normally backed up.

[124] He confirmed that it was just past the Joyceville overpass where they merged over to the right-hand lane when they saw the hazard lights ahead of them.

[125] He confirmed that he is certain that their four-way lights were on. He confirmed that they did check the truck lights before the start of their shift.

[126] He agreed that he had not said that to the police officer who interviewed him at the hospital the night of the collision. He was not asked any such question and the interview was a question and answer format. I have no hesitation in finding that this minor discrepancy has no bearing on the credibility or reliability of this witness.

[127] From his testimony, it would be reasonable to assume that he was unconscious when, and if, their armoured vehicle experienced a second impact from the Erb truck.

[128] He testified that when they were in the left-hand lane and saw the hazard lights and brake lights of the vehicles ahead, such traffic was in both lanes ahead of them. The westbound traffic in front of them in their lane was moving to the right. Every vehicle in their lane had the flashers on and was starting to move over to the right. The right-hand lane was building in traffic and that is why they moved to the right. At that point the vehicle ahead of them was about a truck length ahead and also moving to the right.

[129] He confirmed that it was at the Joyceville interchange ramp onto the westbound where they merged from the left lane to the right lane. From there it was stop and go, for about five minutes until the impact.

[130] After they had merged into the right lane, no vehicle passed them on the left, that is in the passing lane. At the point of impact, there was no traffic to their left in the passing lane.

[131] From his testimony, the court concludes that for about 5 minutes, starting at the Joyceville overpass while the GardaWorld armoured truck was travelling in the right-hand lane in stop and go conditions, there was no vehicle in the left-hand passing lane beside it.

[132] Mr. Williams was an excellent witness who I find had an excellent recollection of the events of the crash. He was responsive, direct and certain in his answers. He was not significantly challenged in respect of his testimony. As I have said the fact that he did not tell the police officer about the hazard lights does not impact negatively against him as a credible and reliable witness. His testimony contained no internal or external inconsistencies. There was no exaggeration or embellishment especially in regard to the horror of the crash and his injuries. He demonstrated appropriate and genuine emotion at the appropriate points in his testimony.

[133] I am completely satisfied that he is a credible and reliable witness.

Patryck Fijalkowski

[134] He was the driver of the Hyundai which was the last vehicle in the line. To briefly summarize his statement to police, through his rear view mirror, he observed the Erb oncoming, approaching him from behind. He determined it was not going to be able to or going to stop. At the last moment, he drove out of the way, accelerating to the right, off the pavement, across the right shoulder into the field to the right of and north of westbound 401. The Erb hit the Ford just as the Hyundai first moved to the right.

[135] Particularly relevant passages from his police statement, taken at 1:34 am, are as follows:

OFFICER SNIDER: Pat, what do you remember of what happened here tonight, this morning?

FIJALKOWSKI: I mean I seen the whole thing pretty much. As I was coming towards the traffic it started to slow down right, but you couldn't really indicate because there was no tail lights.

So it came pretty fast right, but I just heard the other traffic right?

And this car was in front of me and then there was a couple 18 wheelers and then there was not so much traffic behind me but I noticed that the 18 wheeler behind me was still maintaining high speed right, so I just kind of kept my eye on it---

---And then it was way too close for the speed it had to slow down so I literally at the last second I turned into the shoulder---

---And I just hit the gas, but by the time the car actually revved in and kicked in I moved enough he hit that one and the impact kind of with my turn and the revving I just kept going---

(inaudible) until I couldn’t go any more and then that's it. The car went on fire. I ran across and jumped over the rail, sorry the…. I don't know how to say it. I jumped over here just so I can get away because I didn't know if there was anything that would be explosive because it was a massive fire.

SNIDER: So this vehicle that is sitting in front of us or whatever, was that vehicle stopped?

FIJALKOWSKI: It was – we were just going with the traffic.

SNIDIER: So how fast do you think you were going?

FIJALKOWSKI: Not more than 10-15 kilometres.

It was literally like it seemed like a traffic jam it was so slow.

SNIDER: Were both lanes like that or just the one lane?

FIJALKOWSKI: One was a lot more extended I guess. The other side was a little bit more open but it was starting to build up I noticed.

Because I was able to - like the reason I looked back I was adjusting my rear view mirror that's all. (inaudible). Within a minute and a half of me being in the traffic jam.

I was in the right lane.

SNIDER: Okay and was there any vehicle sitting beside you did you notice?

FIJALKOWSKI: No. It was empty.

SNIDER: So every vehicle was in the right lane or just left lane or?

FIJALKOWSKI: The majority was in the right lane.

There was just a car in front of me and then it was 18 wheelers. I couldn't see past the other - the one in front of me.

SNIDER: Do you know which vehicle was the one that was speeding up behind you?

FIJALKOWSKI: It was an 18 wheeler. It was massive.

SNIDER: Do you know if it was - There was a couple transports and a truck on its side, do you know which one?

FIJALKOWSKI: I mean just all I seen was headlights and just kind of like the silhouette of the actual truck getting behind me.

SNIDER: What type of car were you driving tonight?

FIJALKOWSKI: 2005 Hyundai Elantra.

SNIDER: What do you think the cause of this was?

FIJALKOWSKI: The cause?

SNIDER: Yeah.

FIJALKOWSKI: I think distraction and careless driving, not paying attention; maybe fatigue.

Kevin Guest

[136] Mr. Guest is an experienced investigator employed by GardaWorld. He worked for 28 years as a Toronto police officer retiring as staff sergeant in 2013. He has worked for GardaWorld for the past five years.

[137] He testified that each armoured vehicle is tracked by a position locating system which identifies the location of the vehicle from turn on to turn off every 15 seconds.

[138] He testified that the records are very reliable and accurate in tracking a vehicle’s whereabouts.

[139] Ex.10 was identified by Mr. Guest as the trip details report for the armoured vehicle involved in this collision. The records indicate that the vehicle was operational from May 10, 2017 at 6:07:56 p.m. until May 11, 2017 at 12:36:05 a.m. The fact that the records terminate at that time indicates that the vehicle and its system experienced something catastrophic. The record shows the vehicle travelling along Highway 401, having left Gananoque at 12:24:51. Mr. Williams, the passenger in the GardaWorld truck confirmed that it was travelling westbound at this time, at a speed of approximately 98 or 97 km/h. Both Mr. Guest and Mr. Williams testified that the truck is governed to travel no faster than 100 km/h.

[140] The records show that at 12:33:50, the vehicle slowed to 85 km/h and then at 15 second intervals to 0, and 10 km/h at the last recording (the last 2 ½ minutes of data prior to the catastrophic event).

[141] Mr. Guest was clearly a knowledgeable, experienced and well informed witness. There was no challenge to his credibility or his reliability. His answers were responsive and clear. The court has no concern whatsoever about accepting his testimony as credible and reliable. Even though he had sat in on the first two days of the trial, despite the exclusion of witness order, he was not expected to testify, and I find that his evidence was in no way affected by the evidence that he saw and heard in the courtroom prior to his testimony. Defence counsel raised no concerns in this regard at the conclusion of Mr. Guest’s testimony.

Steve Fournier

[142] He is the driver supervisor employed by Erb.

[143] It is company policy that their drivers do not drive while distracted including no cell phone, no smoking, no food or drink. The drivers are to concentrate on the road because of the risk of collision.

[144] Ex. 17 is an Erb “attendance inquiry” which indicates that the accused took an online training course concerning distracted driving in December 2015. The course was to bring awareness to the drivers of the dangers of distracted driving and to impress upon the drivers that they are to keep their focus on the road. Ex.22 is a certificate of achievement dated December 23, 2015 issued to the accused confirming he participated in this training.

[145] In January 2017, the accused took an on-site yearly training session for distracted driving. This identified the dangers of distracted driving. Mr. Fournier testified that it is very important to the company that the drivers and other users of the highway are safe.

[146] Ex. C became Ex. 18 as a Trip Report record that is made by the company. It is filled in by the driver. It is an important business record which is reliable and accurate. It shows that the accused arrived for work on May 10, 2017 at 9 p.m. He began his trip at 22:15 hrs. The start mileage was 541949. It confirms he was driving the Erb truck and trailer involved in the collision and Mr. Fournier confirmed this.

[147] Ex. 19 and 20 confirm the load being carried with invoices from Danone and the Danone load manifest (Tab 5).

[148] Ex. D became Ex. 21 as identified by Mr. Fournier as the driver log which is a record that the company is required to keep by law. It confirms that he had a rest time of 18 hours prior to the trip that resulted in the crash, he being Mr. Tabanao.

[149] A voir dire was held with respect to Ex. E which is a two-page accident report prepared by the accused relating to a rear end collision that he had on September 13, 2015. He wrote that he was getting something from his bag and looked up and the car was in front of him and he rear-ended it. Mr. Fournier testified that it must be that because of that collision, the accused was required to take the distracted driver training course in December 2015.

[150] Following a voir dire as to its admissibility, I ordered Ex. E admitted as Ex. 32 as evidence of Mr. Tabanao's actual state of mind on May 11, 2017.

[151] Briefly, Ex. 3 shows that on September 13, 2015, Mr. Tabanao was driving an Erb unit on Autoroute 40 EST, in Saint-Lazare, Quebec. The weather and road conditions were rain. No injuries or fatalities. No charges laid. Front bumper of Erb truck damaged. Vehicles were towed. Mr. Tabanao’s detailed statement of how accident occurred was: “I was driving on 40 est when I was getting something on my bag and when I look back the car was too close and I made a bad decision and rear ended the car in front of me.” Date report completed is September 13, 2015.

SSgt Doolan

[152] SSgt Doolan was agreed by the defence to be and accepted by the court as an expert in collision reconstruction, qualified to give opinion evidence relating to collision reconstruction including location, direction, sightlines, sequence of events, vehicle placement, speed, reaction times, braking distances, origins and causes of marks or damage to vehicles or roadways.

[153] His report is filed as Exhibit 2.

[154] He attended the scene at 7:55 a.m. on May 11, 2017.

[155] He identified the number of OPP members who attended and played a role in the police investigation of the collision.

[156] He testified that construction on the 401 is very common except for the winter months, this extends to the west from Trenton to the east at the Québec border, May to November. He testified that there could be fifteen different construction sites involving lane closures and reduced speed.

[157] He testified that the area of the 401 where the crash occurred is heavily used. It is a corridor for commercial motor vehicle traffic. There are two lanes of paved highway in each direction divided by a concrete barrier. There is a paved median lane to the left of the passing lane and, also a paved shoulder and then a gravel shoulder to the right.

[158] There is no artificial lighting in the area of the scene, such as overhead streetlights.

[159] The posted speed is 100 km/h.

[160] He testified that the methods of calculating and technical investigation used for friction values in this case are generally accepted.

Distances

[161] From the Joyceville overpass in the east for westbound traffic, the road is straight for approximately 1 km. There is a slight uphill and then a slight 5° turn to the left. The highway is then straight for another 2 km. The crash occurred 1300 m into this 2 km straight stretch. West of the scene, there is another turn to the left in the highway. This turn is located 900 m beyond the first point of impact.

[162] The undisputed evidence is that at 62 mph, approximately 100 km/h, a vehicle travels 27.74 m per second.

Daytime Drive Thru, Video, Ex.3

[163] The officer drove the scene the following Wednesday in the late afternoon, May 17, 2017. At 1 min 04 secs, he is at the slight 5° left turn on a slight uphill. From this curve to the point of the initial impact, it took the officer 52 seconds to drive. This timing and distance relates to Constable Hewitt’s ECM module data which recorded the Erb on cruise control with no braking until impact, commencing at 59 seconds before impact.

[164] SSgt Doolan passes a white background English language EDR 75 metres before the turn to the left ends.

[165] The scene is less than 1400 m from that sign. From that sign, the first point of impact in the collision is visible.

[166] There is a French language identical EDR sign 270 m past the English sign. There is a green sign with white lettering ONroute sign 340 m west of that sign.

[167] The scene of the crash is 840 m west of this ONroute sign.

[168] At 100 km/h, it took the officer 31 seconds from the ONroute sign to reach the area of impact (840 m).

[169] West of the scene of the crash, there are signs indicating that the highway curves to the left. West of that, there are three sets of signage indicating construction zone 2K ahead, construction zone 1K ahead and construction zone.

[170] The officer pointed out that in the video, there is a transport trailer unit showing the trailer has 5 lamps across the top of the back of it that are steadily on. The officer testified that these five lights are always on at night time when the full light system is activated on a trailer. He pointed out the Notice to this effect in the bottom left-hand corner of the trailer rear door. The tanker, the MO trailer and the Garda vehicle are shown in photos to have had these trailer lights.

Weather and Road Conditions

[171] The sky was partly cloudy and the temperature was approximately 4° C. There had been no recent precipitation and the roadway and surrounding ground surfaces were dry. There was no significant wind during the incident.

[172] The officer concluded that the weather conditions were not contributing factors.

[173] The officer concluded that the road conditions and the roadway were not contributing factors.

The Photographs

[174] SSgt Doolan described the photographs in Ex. 5 which depicted the scene the next morning. Generally speaking, from east to west, these photographs show the burned out Ford Focus, the armoured Garda vehicle on its drivers side west of that, the Erb tractor trailer unit driven by the accused with heavy damage to its front engine, the rear end of the MO trailer unit with one of the rear door smashed out and debris from the Erb engine inside the trailer, the damage to the front of the MO tractor, the damage to the tanker unit driven by Bradley Binder and to the front of that tractor, and finally, the damage to the rear of the most westerly tractor-trailer unit, CA.

[175] There was no damage to the rear trailer unit of the Erb vehicle.

[176] The Ford Focus was red in colour. The most significant damage to this vehicle was from the rear which would have been made by a taller vehicle which travelled over it. There was less severe impact damage to the front of this car.

[177] The officer testified that the damage to the rear of the armoured truck was caused by a vehicle taller than the Ford Focus, and that the only other red vehicle involved was the Erb.

[178] It was the officer’s opinion that the Erb truck hit the Ford Focus, then the armoured vehicle and finally the trailer unit of the MO vehicle. The Ford Focus was driven by the impact from the Erb down, and into and under the armoured vehicle. The officer believed that the armoured vehicle hit the MO trailer and that the Erb tractor also hit the rear of the MO trailer.

[179] The officer testified that the armoured vehicle had been hit from behind with significant impact sufficient to push it forward and to break the driveshaft.

[180] The officer testified that from the evidence it was unlikely that the armoured vehicle had driven over the red Focus. His opinion was that the Garda truck did not strike the rear of the Ford Focus.

[181] SSgt Doolan had reviewed Constable Hewitt’s analysis of the ECM for the Erb. He understood the findings to be that the Erb had not slowed down or braked prior to impact.

The Impact Locations

[182] All of the impacts were in the right driving lane.

[183] It was his opinion that there was a significant speed difference between the speed of the Erb and the other vehicles, which were at significantly reduced speeds compared to the Erb. His opinion was at least an 80 km/h speed difference. This is consistent with the evidence of the civilian eye witnesses.

[184] The officer testified that he determined that there had been 7 impacts.

1. The Erb struck the rear of the Ford Focus;

2. The Ford Focus was pushed forward straight ahead by the first impact and struck the rear of the armoured truck being driven under the rear of the Garda. The Ford then rotated across the fog line to the right;

3. The front of the Erb then impacted the rear left corner of the armoured truck. This impact took place just east of the Ford at rest. This impact being offset to the left caused the armoured truck to move forward while rotating clockwise and strike the rear of the Maritime Ontario trailer;

4. The front left corner of the armoured truck made contact with the right rear corner of the MO trailer. The armoured truck continued off the paved shoulder burrowing into the soft shoulder material ending up on the driver side;

5. The front of the Erb truck then struck the rear trailer of the MO;

6. The impact from the Erb pushed the MO truck forward and caused it to strike the rear of the tanker. This caused the empty trailer to buckle.

7. The impact from the MO truck pushed the front of the tanker truck into the rear of the CA transport trailer.

[185] The officer testified that the Ford Focus would not be able to move the armoured vehicle on its own by impacting its rear. The officer testified that if the Ford had impacted the rear of the armoured vehicle at highway speed, it would have had a lot more damage to its front, back to the pillar between the doors.

Distances Required to Stop

[186] The ECM analysis indicated that the Erb truck unit was travelling at 62 - 63 mph in the entire 60 seconds right up until impact. This is approximately 100 km/h. At that speed, a vehicle travels 27.74 metres per second; at 105 km/h, a vehicle would travel 29.41 metres per second.

[187] The officer testified that the Erb tractor and trailer had ABS braking.

[188] He determined after considering airlock delay and driver reaction time (2 secs) that at 95 km/h, the Erb would require 94.8 m to stop and that would take 5.17 seconds. At 105 km/h, the Erb would require 109.68 m, 5.5 secs. to stop. (Ex. 2, Chart pg. 44/46).

[189] The officer identified that the armoured vehicle and the MO trailer had the marker lights across the top at the rear. The MO trailer also had red and white reflective strips across the bottom of the rear door. The tanker had three red marker lights on the rear at the top.

Conclusions

[190] The officer concluded that vehicle mechanical issues did not play a role in this crash.

[191] The officer concluded that there was no reason that the accused could not have seen the vehicles ahead travelling at a slower speed.

[192] The Erb truck travelled over one-half minute and 1 km in distance without reacting to slower traffic that ought to have been visible. This was the cause of the collision.

[193] The Erb truck came onto the approximately 1300 m straight stretch section approaching the scene while traffic ahead had slowed significantly. The first impact was the Erb truck hitting the rear of the Ford Focus at a substantial speed disparity.

[194] In cross-examination, Ex. 8 was introduced. It is the night time drive through the scene by this officer on Thursday, May 18, 2017 at 12:40 a.m. He agreed that in the absence of artificial light, drivers rely on the lights from the other vehicles including, his headlights and those of the other vehicles, the brake and taillights of other vehicles, the marker lights across the top of the trailers, oncoming headlights and hazard lights of the vehicles ahead, if any.

[195] He agreed that there was no signage prior to the collision scene warning of construction ahead or of the need to slow down ahead.

[196] Counsel agreed that at the time of this crash, there was a lineup of westbound traffic backed up for more than 3 km toward the scene of this crash as a result of construction or perhaps a single vehicle mishap at the Highway overpass just west of the Hwy 15 overpass to the west of the scene.

[197] The officer testified that he had never seen the top rear marker lights of the trailer get brighter when the vehicle applied brakes. He did no testing for that of these vehicles.

[198] He noted that the armoured vehicle had reflective tape on the upper corners on the driver side.

[199] SSgt Doolan, with the help of the photos in Ex. 5 identified all of the lighting on the Garda rear, MO trailer and the tanker and the CA. Photo 48A shows that the armoured vehicle had the five marker lights across the top at the rear. Photo 31 shows that the MO trailer also had five marker lights across the top at the rear.

[200] There was a blue Hyundai vehicle located to the north and right of the accident scene a fair way into the ditch area. He was unable to determine where that vehicle had been within the line of vehicles involved in the crash. This is Patryck Fijakowski’s’s vehicle.

[201] The officer acknowledged that if the vehicles were travelling slowly and therefore close together, their brake and taillights could be obscured to the view of the oncoming Erb truck.

[202] It was suggested in cross-examination that the Ford hit the armoured vehicle first by way of minor fender bender, leaving no damage or debris on the road. The officer agreed that he could not discount such a scenario.

[203] However, the officer explained why he believed that the first impact was by the Erb onto the Ford Focus and not the Ford impacting the rear of the armoured vehicle. In the latter scenario, there would be far more deformation and damage to the front end of the Ford. Also, the Ford would have had to be travelling at a higher speed difference than the armoured vehicle to go underneath the rear bumper area and cause the damage under the armoured vehicle. The impact to the rear of the Ford Focus was far more significant. The east most marks on the roadway were made by the rear undercarriage of the Ford being significantly overridden by the front end of the Erb, in the officer’s opinion.

[204] Ex. 4, AOI #1 is where the first impact took place, the Erb hitting the rear of the Ford Focus. AOI #2 is where the Ford hit the rear of the armoured vehicle having been pushed forward from AOI #1 by the Erb.

[205] The officer acknowledged that his opinion included, among other facts determined by the investigators, Constable Hewitt’s analysis of the ECM of the Erb. He had no concern about the analysis performed by Hewitt or his conclusion about the speed of the Erb vehicle. That analysis is consistent with the damage to the vehicles and the scene evidence.

[206] The officer acknowledged in cross-examination that to calculate the longest distance and time required for the Erb to stop at 105 km/h, he used the non ABS formula, resulting in 144.5 m in 7.88 seconds.

[207] He testified that he would expect any reasonable truck driver to start braking at some point between 80.88 m and 144.5 m to avoid a collision. He said he would not expect the vehicle to start braking as far back as 1000 m away from the easterly end of the lineup of traffic.

[208] He concluded at page 45 of his report that “the driver of the Erb had approximately 1150 m and 39 seconds of straight line of sight to perceive and react to the slower traffic while travelling at 105 km/h. Had the driver begun braking within this period of time and distance, the Erb truck could have stopped without colliding with the other vehicles”.

[209] The officer pointed out that the passenger vehicle is a foot or so narrower than the armoured vehicle. Travelling over a distance of 1 km, the obstruction by the car of the armoured vehicle taillights would come and go, and would not be continual.

[210] The evidence is that the Ford Focus would not have obscured the top marker lights on the armoured vehicle and the armoured vehicle would not have blocked the view of the top lights on the MO trailer.

[211] The officer also pointed out that headlights can illuminate the back of vehicles ahead, apart altogether from the lead vehicle taillights.

[212] If the Ford Focus was travelling very closely behind the armoured vehicle, the headlights from the Ford Focus would illuminate the rear doors of the armoured vehicle which were white and red in large part. The rear trailer doors of the – MO - were white too.

[213] It was pointed out that the camera used in the night time drive through video, did not pick out as much detail or markings as the officer’s eye could.

[214] SSgt Doolan concluded: at page 46, “It appears that the driver of the Erb travelled over half a minute and over one km without reacting to slower traffic that ought to have been visible. This was ultimately the cause of the collision.”

[215] The evidence of SSgt Doolan was not substantively challenged by defence. Defence expert Scott Walters did not contradict, challenge or refute in anyway the facts relied upon and the conclusions reached by SSgt Doolan.

Sgt. Martin and Constable Prent

[216] Sgt. Martin attended at the scene on May 11, 2017 and participated in the removal of the ECM from the Erb tractor. He maintained possession of the ECM until he turned it over to Constable Prent on Tuesday after the long weekend, May 23.

[217] Constable Prent was qualified, with the agreement of the defence and accepted by the court, as an expert qualified to give opinion evidence in the ECM data retrieval, analysis of the data retrieved and the equipment required and used to analyse an ECM. He took possession of the module from Constable Martin and held it in his possession until he delivered it to Staff Sgt. Doolan on September 27, 2017.

[218] These two officers were called by the Crown in regard to the issue of the continuity of the ECM between removal from the Erb, and retrieval of the data and analysis and interpretation which was done by Constables Anderson and Hewitt.

[219] I find that the Crown strictly proved beyond a reasonable doubt the continuity of the Erb ECM, through the testimony of the police officers who had it in their possession from the time it was removed from the vehicle at the scene until PC Anderson extracted the data on September 27, 2017 and PC Hewitt in December 2017. These officers were Sgt. Martin, PC Hewitt at the scene, PC Prent, SSgt Doolan and then PC Anderson and PC Hewitt.

[220] Indeed, in his final submissions, defence counsel conceded the continuity of the ECM had been proven.

[221] The court has no hesitation in accepting as proven beyond a reasonable doubt the continuity of the ECM, and the integrity, accuracy and reliability of the data retrieved and, as described in the evidence of Constables Anderson and Hewitt, the analysis and interpretation of that data.

[222] It is unnecessary for the purposes of my decision, therefore, to summarize the evidence of Sgt. Martin and Const. Prent in any more detail.

Constable Jeff Hewitt

[223] Constable Hewitt is an OPP officer with the Highway safety division.

[224] He testified as an expert in the retrieval and interpretation of Engine Control Modules of commercial vehicles. Defence conceded his expertise. From his testimony on the brief voir dire and his CV, it is obvious that he is a highly qualified expert in this field.

[225] His report dated January 9, 2018 was filed as Ex. 13. He attended at the scene at 10:44 AM on May 11, 2017. The basis for his analysis is listed at page 4 of his report and included the data imaged from the four tractor-trailer units involved in the crash.

[226] It was determined from the data retrieved that there was no data from the other three tractor-trailer units, apart from the Erb, related to this collision. Constable Hewitt explained that he has never seen a coded event recorded in a stop and go situation. He testified that consistent with this and the eyewitness evidence the other three units’ data showed no hard braking or sudden deceleration event at this crash.

[227] Constable Hewitt testified that the ECM from which data was received by Sgt. Anderson and him on September 27, 2017 and by him and Prent on December 18, 2017 was from the Erb involved in the crash. Constable Hewitt testified that he has no concerns concerning the accuracy of the data received from the ECM of the Erb. He testified consistent with this and the witness evidence, that he has no concerns that the data from this ECM was in any way corrupted with regard to this collision.

[228] The officer explained that he and Anderson used 2 software to retrieve data from this ECM, Cummins INSITE and PowerSpec.

[229] He testified that the data retrieved confirmed that there was no problem with the engine at the time of the collision. The engine was governed to a maximum speed of 65 mph (104.6 km/h) with a maximum cruise speed of 62 mph (99.8 km/h).

[230] The officer testified that the ECM recorded data when a hard brake or sudden deceleration event meets or exceeds the preset threshold value. For the Erb, the threshold for recording a sudden deceleration event was set to record if the vehicle experienced a 6.96 mph decrease in speed in 1 second. For such an event, the ECM records data in the 59 seconds before the incident and in the 15 seconds after the incident in one second increments.

[231] The officer explained that there were 3 recorded sudden deceleration events for the Erb and how he determined which event related to the subject collision. He also determined that the time and distance in the ECM was being recorded accurately.

[232] With the help of Exhibit 14, in particular pages 5/13 to 8/13 inclusive, the Engine Control Module Data for the relevant sudden deceleration event experienced by the Erb at the time of this crash, the officer determined that there was no braking of the vehicle within the 59 seconds before the crash or within the 15 seconds after the crash. The data indicated that the vehicle was travelling at a steady speed of 62 to 63 mph up to the point of the crash in the 59 seconds before the crash.

[233] The clutch was not engaged during that time frame.

[234] The data confirmed that the cruise control was on steadily for the entire 59 seconds before and until one second after the crash.

[235] The data indicated that there were 6 instances when the throttle was applied by the driver in the 59 seconds prior to the crash, but that despite this, the speed remained steady and the cruise control remained on. He had no explanation for why a driver would do this. He testified that despite this data he still believed that the ECM data retrieved from the Erb was accurate.

[236] The officer determined that something slowed this truck down significantly, but not braking.

[237] The officer determined that it was the crash, the sudden deceleration, that shut off the cruise control.

[238] The officer testified that he would expect a reasonable and prudent driver seeing traffic building up ahead of him, with hazard lights and brake lights on on the vehicles ahead, to turn off his cruise control. At 62 mph, he would expect a reasonable and prudent driver to do this in excess of 100 m in advance of that traffic. He would expect such a driver to actively brake sooner than 100 m from that traffic.

[239] The officer confirmed that at 62 mph, the Erb would travel 27.74 m/sec.

[240] Under cross-examination, the officer testified that it was not possible that the brake of the Erb was applied at the last minute.

[241] Also, under cross-examination in reference to the Cummins Disclaimer, which he was aware of, he stated that they have tested all of the software available to the police and found the data to be accurate each time.

[242] The officer testified in cross-examination that subject to a number of other variables not identified in the question, a truck with ABS, on the 401, with full brake application should be able to stop within 58 m. Applying a 2 second value for reaction time and air delay, means the truck should be able to stop in such circumstances in 113.48 m.

[243] In that scenario, the latest point in distance that action had to be taken by the driver to avoid collision with the vehicle in front would be 113.48 m, approximately 115 m. In time, this equates to 5.81 seconds. The civilian witnesses, Nathan Williams - “just past the Joyceville overpass”; Bradley Binder – “just going under the Joyceville overpass”; and Patrick Sevigny – “1 to 2 km ahead as he passed exit 632” testified that the traffic buildup and hazard or warning lights were visible well beyond 115 m.

[244] SSgt Doolan testified that the collision occurred 1300 m after slight left curve on straight flat highway.

[245] Constable Hewitt’s evidence was not substantively challenged by defence.

[246] The defence expert Scott Walters accepted the results of the ECM analysis performed by Constable Hewitt.

Constable Steven Anderson

[247] The Crown offered Constable Anderson as an expert witness. The Crown filed the officer’s CV and led him through his considerable education, training and experience which includes instructing collision reconstructionists. Defence had no questions for the officer and accepted him as the expert witness as proposed by the Crown.

[248] The officer was accepted by the court as an expert witness qualified to give opinion evidence as to, 1. Collision reconstruction including heavy commercial vehicle digital forensics and imaging and downloading data from commercial vehicle engine control modules (ECMs), and 2. Forensic mapping and time/distance/speed calculations based on GPS tracking data and Google Earth.

[249] He extracted data from the Erb ECM on September 27, 2017. He explained how he did it. The data extracted, as interpreted by Constable Hewitt in his testimony, is found at Ex. 14, Book 1, Tab 10, in particular, pp. 5-8/13.

[250] He has no concern about the accuracy of the data retrieved or about data having been corrupted.

[251] The download of the data and the data retrieved is reliable and accurate.

[252] His further investigation, which was done during the first week of the trial, involved co-relating the positioning of the Garda armoured vehicle as identified in the Trip Details Report Ex. 10, to the physical layout of the approach to and at the crash scene. He explained that the Garda vehicle had a positioning system that tracked and recorded its location at 15 second intervals, Ex. 10. The information provided an address type location as well as the latitude and longitudinal position.

[253] He determined the location of the Garda vehicle on Highway 401 for the last 12 data points from the last page of the Trip Details Report. This is from 12:33:20 am, east of the scene of the crash, every 15 seconds, up to 12:36:05 am., 2 mins 45 secs.

[254] He determined that the Garda truck had travelled in one of the westbound lanes of traffic for this period of time. Although his report indicated the westbound right shoulder, he attributed that as an error due to the variances in the tracking system.

[255] Exhibit 23, Fig. 1.18 to 1.19 shows a daytime street view for the Garda vehicle approaching the crash scene up to the point where the data ends. This is the view using Google Earth in August 2017. Highway 401 westbound is seen to be a 2 Lane Paved Hwy. which is flat and straight at this point and beyond for the entire view.

[256] Exhibit 23, Fig. 1.9 at 12:33:35, two minutes 30 seconds before the data ends, shows the English EDR sign which has a white background and orange background indicating the emergency detour. The Garda vehicle was travelling 98K pH at this point. The next 15 second position indicates the start of a steady slow down by the vehicle.

[257] Exhibit 24, photograph 2, is looking westerly from a point west from Pt. 12, and photograph 1 is looking westerly from a point west of photo 2. These two photographs are enlargements of the white object seen to the right of the highway beyond the gravel shoulder in Fig 1.19. Defence agrees that the crash occurred in the general area of the marks shown on the paved shoulder and the photographs at Ex.24.

[258] From his chart, Ex. 23, p. 20, Constable Anderson determined that the Garda armoured vehicle drove a distance of 1749 m, over the course of these 12 data points, in 2 minutes 45 seconds.

[259] From the reducing speeds shown from Pt. 3 to Pt. 12, he concluded that the vehicle was in a slow speed range, in “stop and go traffic”, “slower than normal traffic”. He concluded that something ahead was causing this stop and go for the vehicle.

[260] When asked to assume that the Erb vehicle was travelling at a constant speed of 62 mph approaching Pt.12, as compared to the speeds of the Garda vehicle shown at the last 4 15 second data points, 11-0-11-10, he concluded that the distance between the two vehicles closed from 1317 m in that 60 seconds.

[261] The evidence of SSgt Doolan was that the crash took place 1300 m into the straight and level section of Highway 401 that was west of the slight 5° turn to the left.

[262] In cross-examination, Constable Anderson indicated that collision reconstruction reports are subject to a three-stage peer review. There is no sign off sheet attached to either the report of SSgt Doolan or Hewitt to indicate that this was done with respect to their reports.

[263] He also indicated that he sat on a panel of three for both Doolan and Hewitt prior to them testifying which is an OPP process to assist officers who are to give testimony in court to properly articulate their evidence.

[264] He testified that the 401 Highway lane is 3.8 m wide.

[265] He acknowledged that the Google Earth program had a distortion inaccuracy which placed the truck in the westbound right shoulder instead of within a thru lane. He said that 0.11m is the low-end of the margin of error.

[266] He acknowledged a further margin of error in the Garda tracking device of +/- 3m to +/- 10 m., that could put the Garda truck into the other lane of traffic. This evidence has to be considered with that of Mr. Williams who testified without challenge that the Garda vehicle was in the right-hand driving lane at all relevant times.

[267] Constable Anderson confirmed that the Garda vehicle travelled over 1300 m between Pts. 1 and 5, and then 200 to 300 m between Pts. 6 and 12. He testified that this is consistent with the Garda vehicle coming into stop and go traffic.

[268] Constable Anderson acknowledged that the data relates solely to the point in time of the 15 second recorded data. There is no information as to what happened in the previous 14 seconds or subsequent 14 seconds. For example, did the speed stay the same or not as recorded at the 15 second point.

[269] Therefore, he agreed that he could not say whether the Garda armoured truck was hit at Pt. 12 or within the next 14 seconds.

[270] He confirmed that the ECM does not provide any steering data.

[271] The officer acknowledged that a stopped vehicle with no lights at all on the 401 at night is “a recipe for disaster”. He also confirmed that there are ever increasing visual cues that include illumination by one’s headlights and the headlights of vehicles in front, vehicles oncoming, lights reflecting off the centre concrete barrier, lights reflecting off the signage, taillights, brake lights, hazard lights and the marker lights across the top of transport trailers.

[272] The officer testified that the cruise control on the Erb could be turned off either by applying the brakes or the cruise button.

[273] With respect to the throttle application shown on the Erb data for the last 59 seconds prior to the sudden deceleration event, he pointed out that it would take a long time to change the speed of the transport truck after the throttle was applied. If the vehicle was governed, applying the throttle may not change speed at all.

[274] The officer testified that if he were the collision reconstructionist for this collision, he would have tried to calculate the speed of all of the vehicles independently of the ECM data, using vehicle specifications, measurements, debris, observations of the scene and other facts including tires and tire wear.

[275] There is no evidence that any such calculation was done in this case.

[276] If he were the collision reconstructionist on this case, he would calculate the speed from any and all physical scene evidence including, debris field, momentum calculations, photographs, damage to the vehicles, road measurements, without looking at the ECM data. He testified that the ECM data is used to confirm whether it fits the conclusions reached in the scene investigation. The ECM data must not be relied upon alone as gospel, unless there is no other scene evidence.

[277] However, there was no defence challenge to the ECM data analysis. On all of the evidence, the data extracted, and the analysis, and interpretation of the data is accurate and reliable. It is consistent with the evidence of the civilian (4) drivers and passenger who were eye witnesses, and with staff SSgt Doolan's observations at the scene and conclusions.

[278] Despite the Cummins Disclaimer, he is satisfied that the data received from the Erb ECM would be accurate and reliable based on testing he has participated in over the years. The ECM data properly retrieved and interpreted is generally accepted by collision reconstructionists as accurate and reliable.

[279] In re-examination, he confirmed that if there were a 2 km lineup of traffic ahead of the driver on the 401 at night, he would expect to be able to see the red taillights of those vehicles ahead reflecting off the concrete barrier between the directions of travel.

[280] He would also expect visual cues of the slow down up ahead. If he saw the transport trailers ahead merging into a single lane of traffic, there would be blinking turn signal lights as a visual cue, a sea of red lights.

Sgt. Dion Lougheed

[281] Sgt. Lougheed arrived at the scene at approximately 1:39 a.m. His responsibilities included safety of persons at the scene.

[282] Sgt. Lougheed observed Mr. Tabanao near outside the Erb cab. For his safety, he placed him into the rear of his OPP cruiser. The officer was asking Mr. Tabanao for his name, date of birth and address.

[283] Mr. Tabanao said to the officer, “Am I going to jail?” The officer asked him why he would say that. Mr. Tabanao replied, “I was reaching down”, and he pointed down to the right in his boot area. “Then I hit them. I felt the impact”.

[284] Mr. Tabanao was very solemn when he said this, very quiet with his head down.

[285] He advised the officer that he had been driving the Erb tractor unit.

Constable B. Darraugh

[286] PC Darraugh had been an OPP officer for 16 years at the time of this collision. He had been previously qualified and remained qualified as a heavy-duty commercial vehicle mechanic. He continues to work in that field and to receive training and certification.

[287] On May 15, 2017, he inspected the Erb tractor and trailer unit at the Pat Rogers towing building. At the same time, he inspected the MO tractor and trailer unit.

The Erb

[288] The extensive damage to the front engine area of the tractor limited his ability to inspect and test the braking and steering.

[289] He determined that the brake adjustment on all three axles of the tractor and trailer were within tolerance. All brake linings were in very good condition. He had no concern about the brake condition of this unit.

[290] He explained that the Erb tractor unit had an additional brake system known as the engine brake or Jacob’s brake. This system assists in braking the unit apart altogether from the axle brake systems. He could not determine whether the Jacob’s brake button on the steering wheel was in the on or off position. However, he was able to determine that this brake system had three positions which varied the capability of slowing the vehicle down in increasing rapidity of slow down. That control was in position 3, the position which would most dramatically slow the vehicle down the quickest if switched to the on position, apart altogether from the other brakes.

[291] The officer also explained that if the driver removed his foot from the accelerator, power is sent to the engine brake system to slow the vehicle down. The tractor unit would not coast if the accelerator were released by the driver.

[292] He explained that the ABS brake system is designed to prevent out of control skidding when using these brakes, to prevent lockup.

MO Unit

[293] The officer determined that this unit had brake deficiencies on each of its three axles; on the first axle of the tractor, the brakes were not functioning; on the second axle, the brakes were out of adjustment; and on the third axle, the brake drum was cracked on the axle. These deficiencies would affect the ability of that unit to brake. It would take more time to slow that vehicle down. The deficiencies were such that if he had stopped this vehicle on the highway for inspection, he would have charged the driver. Yet Parminder Singh slowed this unit safely into the line of stop and go traffic.

[294] The officer testified that his inspection confirmed that all of the lights on the MO trailer were functioning properly. He explained that the upper lights at the top of the trailer on the outside corners operated in conjunction with the turn signals.

[295] He testified that the driver side of the MO trailer had reflective tape end to end which is visible at night if lights are shone on it. He observed a small amber side marker lamp at the rear on the driver side of that trailer consistent with the requirements of s. 62 of the Highway Traffic Act.

[296] From the photographs, he identified side marker lamps on the side of the tanker, both amber and red.

[297] He identified lights on the passenger side of the CA tractor.

[298] He testified that the Brossard had the same reflective tape along the side of that trailer as did the MO.

Constable Lori Lobinowich

[299] PC Lobinowich inspected the cab of the Erb on May 24, 2017 pursuant to search warrant. Ex. 28 is a disk and hard copies of photographs that she took at that time.

[300] Ex. 29 is a certified driving abstract from Québec for the accused.

[301] Ex. 30 is the 911 call log, showing two calls relevant to this crash at 12:40:02 (one minute 13 seconds) and 12: 40:08 (one minute 26 seconds).

[302] Ex. 31 is the 911 call made by Mr. Tabanao. The words of the dispatch officer appear to indicate that this was the second call concerning this collision.

[303] The officer found Ex. E (32), the Erb accident report from September 2015, among the many documents and papers that were in the Erb cab following the crash.

Defence: Scott Walters

[304] Mr. Walters was accepted as an expert witness in accident reconstruction and human factors and driver environments. It is noted that his training in human factors was a segment of a two-day course in 1998 and a week long course in 2004 instructed by Dr. Muttart, who the witness recognized as one of the authorities in the field. The witness testified that he did not understand the basis for Dr. Muttart’s modelling in regard to distance to lead vehicle calculations and therefore he prefers to use geometry first principles in his work. The weight to be given to this witness’ testimony will have to be considered in this light.

[305] He prepared a report dated November 25, 2019, Exhibit 34.

Report

(i) Para. 1.0 - Doolan and Hewitt evidence

[306] He agreed with the evidence of SSgt Doolan and PC Hewitt that from -59 secs to -1 secs before the crash, the Erb was travelling at 62 to 63 mph, the cruise control was on, the engine load varied and no braking was applied. He agreed with their evidence that at time 0, the vehicle speed was 58 mph, the RPMs had decreased, the engine load was zero and the cruise was no longer on. He agreed that at time 0, the Erb speed began to decrease significantly without any brake application and he agreed with SSgt Doolan and PC Hewitt that that sudden decrease along with significant damage to the front of the tractor indicated the beginning of the collision event.

(ii) Para. 2.0

[307] Mr. Walters testified that the slow or stopped traffic “could violate driver expectancies that could likely negatively affect Mr. Tabanao’s ability to respond to the traffic ahead”. He said there were a reduced number of cues including perceived size of the vehicles (at night time a driver cannot see the entirety of the vehicle ahead), less ability to see adjacent berms or ditches and highways topography, and landmarks such as poles or barriers or signs or trees that would be more visible during the day.

[308] Mr. Walters agreed with the Crown evidence that the 401 Highway westbound is straight for a long distance approaching the crash scene, 1300 m.

(iii) Para. 2.1 - Difficulties in Evaluating Closing Speed at Night

[309] Mr. Walters explained the technical terms that he used in calculating abilities to perceive, perception, and reaction by a driver. These are the subtended angular velocity and the SAV threshold measured in radians/second. The concept includes the driver’s eyes being at the apex of a triangle, the bottom end of the triangle representing the rear of the vehicle ahead. As the driver approaches the vehicle ahead, the rear of the vehicle ahead appears larger.

[310] He testified that Dr. Muttart, an authority that he acknowledged, determined that a driver would determine that the vehicle was closing rapidly, not slowly, when the SAVT reached 0.0045 rad/sec. Mr. Walters testified that he found literature from another researcher Markkula indicating that that SAVT would be 0.02 rad/sec.

(iv) Para. 2.1.1. - Braking

[311] Mr. Walters calculated SAVT, using 0.59 friction value for a truck travelling at 100 km/h, using 1.5 seconds for airlock delay and reaction time, and using airlock delay and reaction time of 1 second.

[312] He made the same calculations using a 0.846 friction value.

[313] These calculations assume that the braking is done only by the ABS braking system without the engaging of the engine/Jacobs brake system. It was the opinion of Mr. Walters that the engine brake system would not help much in the situation where there was full engagement of the ABS braking system.

[314] These calculations include the assumptions or comments made by Mr. Walters in the bullet points at the bottom of page 4 and top of page 5 of his report. I will address these assumptions and comments in my assessment of his evidence.

(v) Para. 2.1.2. - Steering.

[315] Mr. Walters had reviewed the photographs of the damage to the front of the Erb tractor and the left rear of the Garda armoured vehicle.

[316] He concluded that it is likely that the right front corner of the Erb tractor impacted the left rear of the Garda.

[317] He considered that witnesses stated that they had seen the Erb tractor trailer fishtail or swerve, and that trial testimony indicated that that unit was jackknifing.

[318] In his Report, he concluded that “it (the Erb) would have been steered to the left approximately 1.65m prior to colliding with the rear left of the Garda.”. In his trial testimony, he testified that it was his opinion that the Erb was steered to the left before, east of, AOI1, the Erb impacting the Ford, a distance of 1.65 perpendicular to the travelled path of the 401 westbound at the point it impacted the left rear side of the Garda.

[319] He concluded that the change in direction of the Erb tractor trailer unit was not caused by the collision between the Erb and the Ford.

[320] It is his opinion that the Erb was steered before it hit the Ford.

[321] He testified that the Erb truck came upon a group of vehicles that were travelling together. For the reasons that I give later in these reasons, I have found that that is not the case such that Mr. Tabanao would have been deprived of additional cues as a result of the vehicles in front of him travelling in a group.

(vi) Section 2.2 - Driver Distractions

[322] He starts this section by saying, “the period of time Mr. Tabanao’s focus was not on the roadway ahead could also have been a factor affecting his ability to avoid the collision”.

[323] In Table 1, he listed secondary and tertiary tasks involved when driving. He said that “after scanning and possibly observing or sampling the Ford and the traffic ahead these could result in Mr. Tabanao improperly sampling again or not having enough time to perceive, react and avoid a collision”. There is no foundation whatsoever in the evidence for such conduct on the part of Mr. Tabanao, other than his own statements that prior to the collision, he was reaching down to the right.

[324] Mr. Walters agreed that the primary task in driving is being directly involved with the driving.

[325] He reported that “in our opinion, Mr. Tabanao’s attention to the roadway ahead could have been distracted while performing foreseeable secondary or tertiary tasks (as described in his Table 1) which would divert driver’s eyes from the roadway ahead”.

[326] In his testimony, he agreed that for example, while his Table attributes 4.7 seconds to texting, in fact texting could take any amount of time, 1 second, 60 seconds.

[327] He testified that this Table 1 information comes from an article cited at footnote 5 but he gave no evidence whatsoever as to the authoritative value of the information or the integrity or value from a probative standpoint of the article.

(vii) Section 2.3 - Looked but Failed to See

[328] Mr. Walters reported that this phenomenon results in collisions and is a known problem in traffic accident reconstruction where visual perception of relevant information is disrupted. “This problem arises when drivers misinterpret the intentions of another driver because of a misplaced expectancy. A looked but failed to see collision also can occur when driver’s perceptual sampling strategies or methods of looking at the roadway ahead do not focus on the hazard until it is too late which could be affected by distractions from secondary or tertiary tasks and the driver compartment. In our opinion, Mr. Tabanao may not have expected vehicles ahead to be stopped or travelling slowly on Highway 401 at the time of the collision which could have affected his sampling strategy and could be factors supporting a looked but failed to see problem occurring in this collision as well as distracting Mr. Tabanao’s attention from the roadway ahead.”

[329] Mr. Walters provided no evidence of the authority of the articles that he drew this information from. The information simply stands alone with no authority attached to it as articles that he read. In answer to the question as to whether the study included a time or distance framework, he replied that it did but that he did not know what it was.

[330] Mr. Walters attributes to Mr. Tabanao that he “may not have expected vehicles ahead to be stopped or travelling slowly… which could have… and could be factors…”. (p. 8). The evidence, as I have the said on this, is Mr. Tabanao’s statements that he was reaching down.

Testimony of Scott Walters

[331] He agreed in cross-examination that had he been at the scene and taken measurements and made observations of the physical evidence, he would have more confidence in his conclusions. He agreed that sometimes mathematical calculations don’t fit real-world facts. He agreed that he should look at all of the physical evidence to see whether it accords with his mathematical calculations. He was reluctant to agree with SSgt Doolan’s opinion that the impact by the Erb forced the Ford down despite the physical evidence on the surface of the highway. He said it was possible.

[332] He testified that he did not know where the SAVT would merge into Stage II of his chart, Ex.35, where the driver may react between 1000 m and 108.7 m, the latter being the distance which he calculated in chief required to stop without collision with the Erb travelling at 100 km/h, 1.5 sec. delay and reaction time, and 0.59 friction.

[333] With respect to the yellow cones shown placed on the highway in photo 25, he agreed with and relied upon SSgt Doolan’s interpretation of what caused that mark. Doolan called this a scuff mark from a commercial vehicle caused by the left front steer axle of the Erb. Although in chief, Mr. Walters had testified that this was caused by steering of the Erb, in cross-examination he testified that it could also be the result of a clock wise rotation of the Erb front axle, “in fact this is the more likely cause”, “probably not as a result of steering”.

[334] He agreed that the Erb hit the Ford straight on and that the impact propelled the Ford straight ahead in its lane before impact with the Garda. In photo 25, the tire marks left by the Ford after it was struck by the Erb show this.

[335] The Crown challenged Mr. Walters’ use of assumptions as to what the accused was doing or what he could perceive prior to impact. It was pointed out that Mr. Walters made no reference in his report to the statements made by Mr. Tabanao. In answer to this, he agreed with his counsel that SSgt Doolan made no reference in his report or evidence to such statements. But with respect, I would observe, that SSgt Doolan was dealing with physical evidence at the scene including observed damage, measurements and debris. In contrast, Mr. Walters was giving opinion evidence as to what Mr. Tabanao “may have been” observing or “could have been” performing secondary or tertiary tasks, improperly sampling or looking but not seeing. He offered the opinion that Mr. Tabanao “may not have expected vehicles ahead to be stopped or travelling slowly on Highway 401”. The only evidence on these points is what Mr. Tabanao said at the scene which Mr. Walters did not take into account.

[336] Mr. Walters agreed that it is a possibility that the Erb could have drifted to the left rather than being steered. When it was put to him that his opinion goes to exonerate Mr. Tabanao, Mr. Walters replied “I can say there was a steering effort and I can say there was not”.

[337] Mr. Walters agreed that if Mr. Tabanao did not see the red lights ahead of him from the other vehicles, it is highly unlikely that he would have steered to avoid them.

[338] In photo 17, it was pointed out to him that the evidence was that inside the rear of the open door to the MO trailer was a headlight piece and red fiberglass from the Erb tractor. His response was that those items could have been put there by the first responders. He repeated that theory twice. The evidence of the police who were on the scene is that those items were photographed where they were found following the crash.

[339] It was put to him that SSgt Doolan’s evidence was that there was 1300 m to the west from a slight 5’ curve to the left. He did not disagree with that evidence. It was suggested to him that vehicles going through that slight left hand turn with their lights and reflectors would provide additional cues to a following driver. He responded, “I don’t know”.

[340] It was put to him that reaching down in the cab of the Erb at 200 or 100 metres from the crash scene would be extremely dangerous at a speed of 100 km/h. He was mostly nonresponsive and commented that “dangerous” is not a scientific term. He was nonresponsive to a question suggesting that seeing brake lights in one lane only ahead would be a greater cue than seeing taillights in both lanes ahead. He replied “brake lights occur routinely”… “Brake lights could come on because of a defect in the switch”.

[341] He was asked whether traffic merging ahead from the fast lane into the slow lane, with the turn signals on, would be a cue to a driver approaching from behind. He responded that “merging is not necessarily a cue the traffic ahead is stopped. It could be that the vehicles were just merging”.

[342] When it was suggested to him that the more vehicles there were, therefore, the more lights there would be to provide more cues to an oncoming driver, he responded that that would be correct provided there were not too many cues which would cause confusion. He agreed it would get a driver’s attention, but then commented “but what you do with it?”

[343] In reference to photo 64, he agreed that the orange cones mark the path of the Ford driver side wheel. He agreed that if there was turning after AOI1, as he had testified he was of the opinion of, these marks should be showing a turn to the left. But they do not. He agreed that his steering theory is not consistent with these tire marks left on the highway.

VI. POSITION OF THE CROWN

[344] The Crown’s position is that Mr. Tabanao is guilty of dangerous and negligent distracted driving, demonstrated by a failure to pay attention to the highway and traffic ahead of him, a failure to keep a proper lookout, failure to see the slowed and stopped traffic when it was there to be seen, a failure to react to traffic conditions by slowing down, failure to take avoidant steps as he got closer to the slower stop and go traffic and the failure to react to the risk and take evasive or corrective action in the many seconds during which he could have reacted, such conduct resulting in a high speed differential collision causing death and bodily harm to other users of the highway and significant property damage.

[345] The Crown points out that all of the other drivers, those in the 3 km lineup of stop and go traffic, including the 30 vehicles that Mr. Sevigny saw ahead of him in both lanes and the six other vehicles directly involved in the crash, perceived and reacted safely.

[346] The Crown submits that the evidence demonstrates that Mr. Tabanao was inattentive while driving for a protracted period of time that resulted in him not perceiving the hazard ahead, and thereby depriving himself of the ability to react by turning off his cruise control and slowing down safely into the lineup of stop and go traffic in his lane.

[347] The Crown submits that the evidence does not demonstrate an inherent risk of driving in this case.

[348] The Crown submits that it has proven that Mr. Tabanao drove his tractor trailer unit in a criminally negligent manner causing four deaths and three persons to suffer serious bodily harm. The Crown submits that the driving amounted to a marked and substantial departure from the standard of care that a reasonable person would have observed in his circumstances. Indeed, the standard of care of a reasonable driver in those circumstances is demonstrated by the drivers of the many other vehicles that were driving that highway in the 3 km lineup of stop and go traffic at that time. The Crown submits that his driving demonstrates a wanton and reckless disregard for the lives and safety of the other users of the highway.

[349] The Crown submits that the evidence demonstrates that his driving was a marked departure from the standard of care that a reasonable driver would observe in his circumstances and objectively viewed was dangerous (the latter point is conceded by defence).

[350] The Crown submits that the weight of the evidence, civilian and police, is that reasonable drivers on the 401 at night exercise the reasonable care of watching for slowdowns and stop and go traffic resulting from the not unusual events which include construction or collisions.

[351] The Crown submits that Mr. Tabanao’s driving conduct demonstrates a very high degree of departure from the standard of care that a reasonable person would observe in his circumstances, as demonstrated by the many other drivers in front of him that night.

[352] The Crown submits that Mr. Tabanao did not take the expected reasonable steps such as turning off the cruise control, applying the brakes or steering to avoid collision. On the evidence, the left lane and the shoulder were open for him to steer safely into.

[353] The Crown takes the position that the evidence demonstrates that Mr. Tabanao did not see the hazard ahead and that he did not react to it. The impact of the collision is what alerted Mr. Tabanao to the danger.

[354] The Crown says the evidence does not support the defence claim that the CA, tanker, MO unit and the Garda were travelling in a group together. The CA unit had passed the other three units and was travelling at a higher rate of speed than they were.

[355] The Crown submits that the court should draw the inferences from his utterances at the scene that Mr. Tabanao did not know whether he had hit a car or a truck, that he had been reaching down for something and that his attention was not brought back to the road ahead until the impact with the Ford Focus.

[356] The Crown submits that by driving inattentively, Mr. Tabanao was acting deliberately. There was no sudden event causing a hazard, that would be unexpected in the circumstances. The means to perceive and react to a not unusual hazard was available over an extended distance and time to Mr. Tabanao, easily and expectedly within his grasp. This is not a case of a totally unexpected heart attack, epileptic seizure, bee sting, scattering of papers inside the cab by opening the window or dropping of a cigarette ash. The means to react to the hazard of the lineup of traffic ahead was standard and expected and readily available: shut off the cruise control, brake safely, using either or both of the two systems available, if necessary steer to the left or right.

[357] The Crown points out that Mr. Tabanao was a professional truck driver who had received special training on two occasions about the dangers of distracted driving.

[358] The Crown points out that the evidence proves that visibility of the hazard ahead began at a distance of 1300 m for Mr. Tabanao as it did for all of the other drivers. He submits that the evidence proves that Mr. Tabanao did not take the reasonable steps that all of the other drivers took in perceiving and reacting to the hazard ahead.

[359] The Crown submits that the court should conclude that Mr. Tabanao was reaching down to pick something up and that he did so continuously for an extended period of time, as much as 40 seconds travelling over a distance of 1000 m.

[360] The Crown submits that nighttime driving is more risky and that therefore, the standard of care expected of a reasonable driver is of greater attention to his driving.

[361] The Crown submits that based on logic, common sense and human experience, a reasonable person would perceive the risk of prolonged distracted driving and that a reasonable person would have taken steps to avoid that risk. This is a marked and substantial departure from that of a reasonable person exercising the requisite standard of care in Mr. Tabanao’s circumstances.

[362] The Crown submits that the evidence of the other drivers and passenger who were at the scene proves how reasonably prudent drivers should have exercised the requisite standard of care in the circumstances. Mr. Tabanao’s driving is a marked and substantial departure from such reasonable care and demonstrates wanton and reckless disregard to the lives and safety of the other users of the highway who could reasonably be expected to be present on the highway.

[363] The Crown, as did the defence, reviewed the evidence in detail.

[364] The Crown relies on the evidence of Mr. Fournier, supervisor of the Erb drivers, for the standard of care expected of its drivers such as Mr. Tabanao.

[365] The Crown pointed out that the court should find without any doubt whatsoever in the evidence of Mr. Williams that the five red clearance lights across the top of the Garda truck were on and the hazard lights had been activated. They are bright. The front ones reflect off the back of the truck ahead, which in this case was the MO trailer which had white rear doors. He described how his driver and he perceived the traffic ahead and reacted to it.

[366] Bradley Binder, the driver of the tanker, testified that it was his responsibility as a professional truck driver to be aware of what is going on around him, front, back and side. Up ahead, he saw a bunch of four ways and brake lights. That made him aware there was something going on. He reacted to that. The four ways were very noticeable to him. He said you can see flashers from a long way away. He testified as to where his vehicle was when he first saw these brake lights and four ways ahead. When he arrived, there were still people merging ahead of him.

[367] The Crown highlighted that Patrick Sevigny saw the lights from as far east as the Joyceville interchange, which on SSgt Doolan’s evidence is 2.3 km back. After he had slowed down and stopped with his four ways on, he saw the tanker come in behind him then another truck after that. He said the tanker and the second truck had their four ways on behind him. He was stopped for about a minute with no one behind him. The MO truck arrived 5 to 10 seconds before the explosion. His evidence does not support the defence group theory. After the initial bang, he saw that the Erb tractor remained in the slow lane while the trailer jackknifed. He testified that it was obvious the traffic was stopped, there was a straight line, 2 km, 1 km, and a driver could see everybody with the four flashers on and stopped. He went on to say that because it was a clear night and a straight line going uphill, all stopped with the intense light of the braking or flashers, “it’s impossible you don’t see us, impossible, unless you are sleeping or you are bending for 15 minutes”. He testified that in his experience as a truck driver, it is very dangerous to bend down and pick something up while driving.

[368] With respect to the preliminary inquiry transcript of the evidence of Parminder Singh, the MO unit driver, the Crown asks the court to discount the evidence that Mr. Tabanao said to him that he was sleepy. Mr. Singh is not fluent in English and in any event, Mr. Tabanao immediately retracted that statement. The Crown asks the court to accept the evidence of Mr. Singh about seeing the trucks ahead changing lanes, the traffic ahead moving slowly and that he, therefore, started to slow down 700 or 800 m prior to the collision site because of the brake lights visible on the trucks ahead of him.

[369] With respect to the police statement of Patryk Fijalkowski, the Crown submits that the court should not accept his words “because there was no taillights” as fact about the lights ahead of him to be seen. The Crown submits that Mr. Fijalkowski saw the traffic ahead starting to slow down. Such statement is completely at odds with the overwhelming uncontested evidence of the other eyewitnesses. The car in front of him and he were travelling with the traffic at no more than 10 to 15 km/h. Within a minute and a half, he saw the headlights of a truck barreling down on him. It was not slowing.

[370] The Crown submits that the court should accept the testimony of Sgt. Loughheed as to what Mr. Tabanao said to him at the scene. The officer is a trained policeman experienced in taking notes of statements. His evidence as to what was said is consistent with that of Patrick Sevigny.

[371] The Crown points out that the expert opinion of SSgt Doolan was not contradicted and in fact, was accepted by the defence expert. The court should accept his testimony as to the scene evidence, damage caused and by what vehicle, the order of the collisions, required perception time including air lag, 2 secs., stopping distances to avoid collision with and without ABS and at 2 friction values, and his conclusions. SSgt Doolan testified that the Erb struck the rear of the Ford Focus driving it down into the pavement and then forcing it forward in the right lane almost straight ahead. He identified the tire marks at the scene depicting the path of the Ford Focus after the initial crash. He testified that the speed differential between the Erb and the other vehicles was at least 80 km/h. SSgt Doolan identified the lighting systems on all the vehicles involved. These are shown in the photographs taken at the scene. He testified that the Erb driver would have been able to see the five red clearance lights across the top of the MO truck and possibly the reflectors in the upper corners. He testified that the headlights on a vehicle would illuminate the back of the vehicle ahead of it. The photographs indicate that the rear doors of the MO were predominantly white as were the rear doors of the Garda.

[372] The Crown submitted reasons that the court should reject the opinion of defence expert Scott Walters as to braking distances, last-minute steering, average times for distracted tasks and look but fail to see principle. He submitted that except where Mr. Walters agrees with the evidence of the other witnesses his evidence should be rejected. Mr. Walters agreed that the Jack knife observation was consistent with a hard impact and trailer momentum swinging the trailer out sideways as opposed to an indicator of steering. In cross-examination, he resiled from his initial opinion that tire marks on the road surface were caused by steering. It was more likely as a result of a failure of the front steering axle as a result of being damaged, probably not as a result of steering. Mr. Walters agreed that the evidence shows that the Ford Focus was impacted square on from behind by the Erb tractor. Mr. Walters agreed that the Garda vehicle four way flashers would be a very strong cue to anyone even at 1000 m. He agreed that all of the other drivers were able to properly interpret the cues ahead of them and perceive, react and bring their vehicles to a stop. He agreed there were sufficient cues for the other motorists who brought their vehicles to a stop. Mr. Walters fully accepted and based his report upon the results of the ECM analysis tendered in the Crown evidence.

[373] The Crown submits the court should accept as a fact the evidence of Mr. Walters that the Ford Focus is approximately 1 m narrower than the Garda truck and therefore could not block both sides of brake lights, taillights and hazard lights of the Garda at the same time as fact.

[374] The Crown submitted Constable Hewitt’s testimony about the accuracy and reliability of the ECM data extraction and analysis should be accepted by the court. It was not challenged by defence. It shows incidents of the application of near full throttle in the 59 seconds preceding the crash. It shows the cruise control kept at 62 mph until disengaged because of the crash. His opinion was that the speed of the truck was 62 mph at the time of the impact with the Ford Focus. He gave evidence that a vehicle travelling at 100 km/h travels 27.74 m in a second. He testified that it was not possible that the brake was actually engaged prior to impact.

[375] The testimony of Constable Anderson as to his extraction of the Erb ECM data and its reliability and accuracy was not challenged. Indeed, the Crown was put to the strict proof of the continuity and integrity of that procedure and information. Defence conceded the issue and I find the issue proven by the Crown beyond a reasonable doubt. Constable Anderson’s evidence as to the Garda speed and location was not challenged. The highway speed of the Garda was 98 km/h until two minutes 15 seconds before impact. It then began to slow. The data indicates that the Garda truck was in stop and go traffic for at least one minute 15 seconds.

[376] Of the other evidence reviewed by the Crown, of particular note, is that of Constable Darraugh who testified that he did not find any mechanical defects in the brake system of the Erb unit. It was equipped with ABS brake system. He determined that the engine retarder brake system was set to position 3 which is the most aggressive engine brake setting, but he could not determine if the button on the steering wheel had been activated to on. He determined that there were brake deficiencies on axles of the MO unit. This would have reduced its ability to brake.

[377] The Crown relies upon the evidence of the September 2015 rear end collision in which Mr. Tabanao was involved and the subsequent training for distracted driving and his utterances at the scene connecting that incident with the May 2017 crash as evidence of his actual state of mind at the time. The Crown submits that evidence that the accused knowingly did precisely what resulted in a crash previously and for which he was trained not to do because it was too dangerous is evidence of a wanton or reckless disregard for the safety of others.

VII. POSITION OF THE DEFENCE

[378] The defence submits that, firstly, the Crown has not proven criminal negligence in the operation of a motor vehicle beyond a reasonable doubt. Defence counsel submits that the proof in this case does not meet the high standard of wanton or reckless disregard or marked and substantial departure.

[379] The defence submits, secondly, that it concedes that the Crown has proven the actus reus of dangerous driving beyond a reasonable doubt, but that the Crown has not proven the mens rea element of the offence of dangerous driving beyond a reasonable doubt.

[380] This concession means that viewed objectively the accused was 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”.

[381] In acknowledging that the Crown has proven the actus reus of dangerous driving beyond a reasonable doubt, the defence points to the facts including, that for 1300 m on a straight level highway there were no obstructions to visibility for westbound drivers, that there was a lineup of stop and go traffic in the right-hand lane including commercial vehicles and that there was no evidence of speed reduction by the Erb unit until the last second. Additional, undisputed factors proving that Mr. Tabanao’s driving, viewed objectively, was dangerous include that weather was not a contributing factor to the crash, road conditions were not a contributing factor, the operation of other vehicles was not a contributing factor, there was no mechanical issues identified with respect to the Erb tractor-trailer unit, the evidence about all of the red taillights and or brake lights, hazard lights and clearance lights observed by the drivers and passenger of the vehicles involved in the crash and all of the vehicles in the 3 km lineup of stop and go traffic, Patrick Sevigny testifying that he could see 30 vehicles in both lanes ahead of him, and that the CA unit, the tanker, the MO unit with deficient brakes on all three axles, the Garda armoured vehicle, the Ford Focus and the Hyundai were all able to perceive the need to slow down and to slow down their vehicle safely and then proceed in the stop and go traffic.

[382] The defence referred the court to and reviewed five cases demonstrating the much higher degree of fault required for criminal negligence as opposed to dangerous driving, Beatty and Roy as the leading cases on dangerous driving, and seven cases demonstrating situations where the courts did not find that criminal negligence was proven but that dangerous driving was proven.

[383] The defence submits that the authorities hold that personal characteristics of the driver of the vehicle are not relevant with respect to the mens rea of dangerous driving. On this principle, the defence submits that the court cannot consider Mr. Tabanao’s prior collision in September 2015 and his retraining on two occasions in regard to distracted driving.

[384] The defence cited the law that the consequences of the driving, such as death or bodily harm, are not to be used by the court in determining whether or not criminal negligence or dangerous driving has been proven. I agree and I have not done so.

[385] The defence submits that the law establishes that in situations of excessive speed, courts look to additional facts in considering whether criminal negligence has been proven.

[386] The defence reviewed the evidence in some detail.

[387] The only challenge made by the defence to the evidence of SSgt Doolan was that he did not make independent calculations as to the speed of the Erb unit based on evidence from the scene including tire measurements and tire condition. The defence pointed out that Crown witnesses Prent and Anderson, police reconstruction experts, testified that they would have done that even with the ECM data and analysis. The defence pointed out in respect of the evidence of the witnesses that construction on the 401 between May and November was not unusual nor was slowdowns in stop and go traffic as a result of construction or collisions, that a driver could not predict the location of construction sites. On this point however, it is to be noted that Parminder Singh said that he could see the construction sign beyond the crash scene and the photographs filed at trial show that sign, as well, indicating construction west of the crash scene. On the evidence, the stop and go traffic began about 900 m east of that sign.

[388] The defence admits the orientation and order in the lineup of the vehicles involved.

[389] The defence admits the order of the collisions as concluded and identified by SSgt Doolan.

[390] The defence admits the chart prepared by SSgt Doolan at page 44 of his Report, using 2 friction values. The defene does not dispute his calculations that at the lower friction value it would take the Erb from initial perception 144.5 m, 7.88 secs, to stop, and at the higher friction value, 109.68 m, 5.5 secs.

[391] In regard to SSgt Doolan’s conclusion that Mr. Tabanao had 1150 m, 39 secs., to perceive and react to the lineup of traffic ahead of him, the defence points out that SSgt Doolan testified that he would not expect Mr. Tabanao to slow down at a distance of 1 km back. However, this evidence must be considered, with the eyewitness evidence of the other drivers and passenger, as to why, how and when they reacted.

[392] The defence position is that the Crown cannot prove beyond a reasonable doubt the distance over which or the time during which Mr. Tabanao failed to perceive and react to the situation on the road in the lane ahead of him.

[393] In his submissions, defence counsel conceded the continuity of the ECM. I agree. The extensive evidence led by the Crown on that point establishes the integrity and continuity of the ECM, and the accuracy and reliability of the data extracted and analysis of it. There is no conflicting evidence. That evidence was accepted by the defence expert. There is no reason whatsoever to have any doubt about the continuity of the ECM and the accuracy and reliability of the data extracted and analysis of it by Const. Hewitt.

[394] Defence conceded that Mr. Williams and the driver of the Garda armoured vehicle, Mr. Muenz-Till, suffered bodily harm. Defence did not concede that Mr. Binder suffered bodily harm.

[395] The defence argues that prior to the impact of the Erb with the Ford Focus the merging of the vehicles ahead from the left lane into the right lane had been completed. Counsel argues that therefore Mr. Tabanao would not have had such a visual cue.

[396] Defence argues that the statements by Mr. Tabanao at the scene indicate that at the last moment, very late, he saw the stop and go traffic, and that those statements indicate that he was remorseful for what had occurred.

[397] The defence submits that the ECM data that indicates that Mr. Tabanao loaded the throttle to 100% on six occasions in the 55 seconds prior to collision, is not explained on the evidence. The defence submits there is no evidence as to why that occurred. Officer Hewitt testified that he did not know why that would occur. Doing so did not change speed of the vehicle. The defence submits that the crown is speculating when it submits that this means Mr. Tabanao was reaching down and not watching ahead over this entire time frame.

[398] The defence submitted that the evidence supports the inference that the CA, tanker, MO unit and Garda were travelling as a group. Mr. Tabanao was not travelling with that group.

[399] The defence concedes the evidence of Constable Anderson who plotted the movements of the Garda vehicle using its corporate tracking records and GPS. The defence submits that this evidence shows that the Garda was in stop and go traffic for 2 ½ minutes. The defence questioned Constable Anderson about a vehicle being on the 401 at night stopped with no lights. Constable Anderson acknowledged that that would be a recipe for disaster. With respect, that is not the evidence in this case.

[400] The defence made brief reference to the evidence of its expert, Mr. Walters’, calculations showing braking distance of less than 100 m, evidence of last-minute steering, distractions and average times required for those distractions, and the concept of look but not see. In his submissions, defence counsel submitted that Mr. Walters evidence is about human factors. If distracted, the driver cannot perceive and cannot react accordingly.

[401] In his reply to the Crown submissions, defence counsel said that the trial does not turn on Mr. Walters evidence. Even if the court rejects Mr. Walters’ evidence, the burden is on the Crown, to prove the essential elements of the offences charged beyond a reasonable doubt.

[402] Defence counsel went further and commented on what he noted as lengthy submissions by the Crown challenging the evidence of Mr. Walters. Defence counsel stated that he is not relying on Mr. Walters’ evidence in seeking an acquittal. Defence submitted that Mr. Walters merely provided some different information about human factors. Defence counsel submitted that the Walters’ evidence is not there to challenge the OPP experts and can be read in conjunction with their evidence.

[403] The defence relies on the evidence of Patryck Fijalkowski that there were no taillights. He was the last person to arrive at the scene before the crash. His evidence should leave the court with a reasonable doubt.

[404] With respect to the charge of criminal negligence, defence counsel submits that there is no evidence of a deliberate act on the part of Mr. Tabanao. His words at the scene as related by the witnesses indicate remorse.

[405] Defence submits that his words at the scene to the witnesses indicate that he did see the vehicles ahead of him before impact.

[406] The defence submits that there is some evidence of last-minute braking, although Constable Hewitt testified that he disagreed that the ECM analysis shows such evidence.

[407] The defence submits that Mr. Walters’ evidence of steering also confirms that Mr. Tabanao saw the vehicles before impact.

[408] Defence counsel submits that the Crown has not proven that Mr. Tabanao did not see the traffic ahead as far back as 1300 m. Defence argues that SSgt Doolan’s evidence does not mean that. He argues that the Crown cannot prove the distance over or duration of any inattention on the part of Mr. Tabanao, how far back it started or whether it was continuous or intermittent. Defence counsel submits that the burden is on the Crown to prove such things to make out the offence of criminal negligence, beyond a reasonable doubt.

[409] The defence submits that the evidence of Patryck Fijalkowski – “no taillights” and Parminder Singh – “MO hazards not on” - should not be discounted and should be given full weight. It gives rise to reasonable doubt.

[410] In his reply submissions, defence repeated that the unexplained throttle loading does not mean, is not evidence of, reaching down by Mr. Tabanao for the entire 55 seconds before impact.

[411] Defence position is that there is no evidence as to how long Mr. Tabanao was distracted or inattentive to his driving.

[412] The defence concedes that there are occasions of stop and go traffic on the 401 at times.

VIII. THE APPLICABLE LEGAL PRINCIPLES

[413] The case citations that I have used in these Reasons as set out in the Index of these Reasons are those provided to me by counsel.

1. Do Not Consider the Consequences

[414] The raw, deep and profound emotion shown and expressed by the professional drivers, Bradley Binder and Patrick Sevigny, and by the professional passenger Nathan Williams, bears witness to the horrific scene, loss of life and injury that occurred in this crash.

[415] However, the law is clear that at this stage of the proceedings, what the court must consider is the manner of driving on the part of Mr. Tabanao, not the consequences of the crash.

[416] The court acknowledges with deep, sincere sympathy to their family and friends the deaths of Pierre Courville, Christine Hanrahan, Mitchell Caird and Zachary MacGregor, and as well, the bodily harm suffered by Nathan Williams, Matthew Muenz-Till and Bradley Binder.

[417] But the law clearly directs this court that these tragic consequences must not be taken into consideration when determining whether Mr. Tabanao’s driving has been proven beyond a reasonable doubt to constitute dangerous driving or criminal negligence.

[418] In this regard, I am bound by the Supreme Court of Canada decisions in R. v. Beatty, para. 46, and R. v. Roy, paras. 34 and 35. See also R. v. Buchanan, para. 31, R. v. Alli, para. 88 and R. v. Sippel, at para. 42.

2. Fundamental Principles

Presumption of Innocence

[419] Every person charged with an offence is presumed to be innocent, unless and until Crown counsel proves his guilt beyond a reasonable doubt.

[420] The presumption of innocence means that Mr. Tabanao started this trial presumed to be innocent of the crimes charged. This presumption stays with him throughout the trial until the court concludes its deliberations. The presumption of innocence is only defeated if and when Crown counsel satisfies the court that Mr. Tabanao is guilty by proving every essential element of the offence or offences beyond a reasonable doubt.

Burden of Proof

[421] The obligation to prove Mr. Tabanao’s guilt rests with the crown counsel. From start to finish that obligation never shifts. No accused person has to present evidence. Mr. Tabanao does not have to prove anything. He does not have to prove that he is not guilty of the offences charged or of a less serious offence or offences.

[422] The court must find Mr. Tabanao not guilty unless Crown counsel proves all of the essential elements of an offence or offences beyond a reasonable doubt.

Reasonable Doubt

[423] The phrase “beyond a reasonable doubt” is a very important part of our criminal justice system.

[424] A reasonable doubt is not an imaginary, far-fetched or frivolous doubt. It is not a doubt based on sympathy for or prejudice against anyone involved in this trial. 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.

[425] It is not enough for the court to believe that Mr. Tabanao is probably or likely guilty. In such circumstances, the court would have to find him not guilty because Crown counsel would have failed to prove his guilt beyond a reasonable doubt. Proof of probable or likely guilt is not proof of guilt beyond a reasonable doubt.

[426] The court must bear in mind however, that it is nearly impossible to prove anything to an absolute certainty. Crown counsel is not required to do so. Absolute certainty is a standard of proof that is impossibly high.

[427] It has been said that proof beyond a reasonable doubt falls much closer to absolute certainty than to proof on a balance of probabilities.

3. Dangerous Driving

Section 249

[428] Although Mr. Tabanao is charged with criminal negligence in the operation of a motor vehicle causing death and bodily harm, counsel referred me to dangerous driving cases because dangerous driving is a lesser but included offence.

[429] In R. v. Alli, Justice Paciocco, as he then was, dealt with an accused charged with both criminal negligence and dangerous driving.

[430] He started his analysis by considering dangerous driving. He said, “If it is met, I am obliged to ask whether Mr. Alli is also guilty of criminal negligence causing death while dangerous driving”. Para. 56.

[431] I shall proceed in a like manner.

[432] S. 249(1)(a) of the Criminal Code defines dangerous driving as operating a motor vehicle in a manner that is dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place.

Beatty

[433] In Beatty, the Supreme Court of Canada described the offence as follows:

43 As we have seen, the requisite mens rea for the offence of dangerous driving was the sole issue before the Court in Hundal, and the test was expressed accordingly. In order to clarify the uncertainties I have mentioned, it may assist to restate the summary of the test in terms of both the actus reus and the mens rea of the offence. I respectfully disagree with the Chief Justice that the test for the actus reus is defined in terms of a marked departure from the normal manner of driving (para. 67). The actus reus must be defined, rather, by the words of the enactment. Of course, conduct that is found to depart markedly from the norm remains necessary to make out the offence because nothing less will support the conclusion that the accused acted with sufficient blameworthiness, in other words with the requisite mens rea, to warrant conviction. In addition, it may be useful to keep in mind that while the modified objective test calls for an objective assessment of the accused's manner of driving, evidence about the accused's actual state of mind, if any, may also be relevant in determining the presence of sufficient mens rea. I would therefore restate the test reproduced above 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.

[434] Defence counsel concedes that the Crown has proven the actus reus of dangerous driving beyond a reasonable doubt. This means that the defence concedes that Mr. Tabanao’s driving was dangerous, objectively viewed, 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. I have already listed in my summary of the defence position, some of the evidence proving this essential element of dangerous driving beyond a reasonable doubt.

[435] I agree that the Crown has proven the actus reus in this case beyond a reasonable doubt.

[436] The crown must also prove beyond a reasonable doubt that Mr. Tabanao had the requisite mens rea for the offence of dangerous driving.

[437] In regard to the essential element of mens rea, the Supreme Court of Canada said in Beatty,

37 The underlying premise for finding fault based on objectively dangerous conduct that constitutes a marked departure from the norm is that a reasonable person in the position of the accused would have been aware of the risk posed by the manner of driving and would not have undertaken the activity. However, there will be circumstances where this underlying premise cannot be sustained because a reasonable person in the position of the accused would not have been aware of the risk or, alternatively, would not have been able to avoid creating the danger. Of course, it is not open to the driver to simply say that he or she gave no thought to the manner of driving because the fault lies in the failure to bring to the dangerous activity the expected degree of thought and attention that it required. As Cory J. explained (at p. 885 of Hundal):

It would be a denial of common sense for a driver, whose conduct was objectively dangerous, to be acquitted on the ground that he was not thinking of his manner of driving at the time of the accident.

However, because the accused's mental state is relevant in a criminal setting, the objective test must be modified to give the accused the benefit of any reasonable doubt about whether the reasonable person would have appreciated the risk or could and would have done something to avoid creating the danger. On these occasions, even when the manner of driving viewed objectively will clearly be dangerous, the accused cannot be convicted. Cory J., in Hundal, gave some useful examples (at p. 887):

Take for example a driver who, without prior warning, suffers a totally unexpected heart attack, epileptic seizure or detached retina. As a result of the sudden onset of a disease or physical disability the manner of driving would be dangerous yet those circumstances could provide a complete defence despite the objective demonstration of dangerous driving. Similarly, a driver who, in the absence of any warning or knowledge of its possible effects, takes a prescribed medication which suddenly and unexpectedly affects the driver in such a way that the manner of driving was dangerous to the public, could still establish a good defence to the charge although it had been objectively established.

41 In Hundal, Cory J. summarized the analytical framework for applying the modified objective test in the following oft-quoted passage (at pp. 888-89):

It follows then that a trier of fact may convict if 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 such place and the amount of traffic that at the time is or might reasonably be expected to be on such place". In making the assessment, the trier of fact should be satisfied that the conduct amounted to a marked departure from the standard of care that a reasonable person would observe in the accused's situation.

Next, if an explanation is offered by the accused, such as a sudden and unexpected onset of illness, 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.

[438] I observe that there is no evidence of such totally unexpected circumstances present in Mr. Tabanao’s case.

[439] The Supreme Court of Canada in Beatty went on to say,

47 In determining the question of mens rea, the court should consider the totality of the evidence, including evidence, if any, about the accused's actual state of mind. As discussed at length above, the mens rea requirement for the offence of dangerous driving will be satisfied by applying a modified objective test. This means that, unlike offences that can only be committed if the accused possesses a subjective form of mens rea, it is not necessary for the Crown to prove that the accused had a positive state of mind, such as intent, recklessness or wilful blindness. Of course, this does not mean that the actual state of mind of the accused is irrelevant. For example, if proof is made that a driver purposely drove into the path of an oncoming vehicle in an intentionally dangerous manner for the purpose of scaring the passengers of that vehicle or impressing someone in his own vehicle with his bravado, the requirement of mens rea will easily be met. One way of looking at it is to say that the subjective mens rea of intentionally creating a danger for other users of the highway within the meaning of s. 249 of the Criminal Code constitutes a "marked departure" from the standard expected of a reasonably prudent driver. Doherty J.A. similarly equates such deliberate action with a "marked and substantial" departure from the norm in the context of a criminal negligence charge in R. v. Willock (2006), 2006 CanLII 20679 (ON CA), 210 C.C.C. (3d) 60 (Ont. C.A.), where he states, at para. 32:

I think the appellant's conduct during the two or three seconds in issue could only reasonably be said to constitute a marked and substantial departure from the conduct expected of a reasonable driver if the appellant deliberately jerked the steering wheel to cause the vehicle to swerve, presumably to either show off or frighten his young passengers. If that finding was reasonably open on the evidence, then the appellant could properly have been convicted of criminal negligence, as he was unable to retain control of the vehicle before it crossed the median and collided with the westbound vehicle. As indicated, I read the trial judge as making that finding. With respect, I do not think that finding was reasonably available on the totality of the evidence.

… "conduct occurring in a two to three second interval can amount to a marked departure from the standard of a reasonable person and demonstrate a wanton or reckless disregard for the life or safety of others." Doherty J.A. simply recognizes, as I do, that evidence about the actual intention of an accused is relevant to a court's objective assessment of whether or not conduct constitutes a marked departure from the norm.

48 However, subjective mens rea of the kind I have just described need not be proven to make out the offence because the mischief Parliament sought to address in enacting s. 249 encompasses a wider range of behaviour. Therefore, while proof of subjective mens rea will clearly suffice, it is not essential. In the case of negligence-based offences such as this one, doing the proscribed act with the absence of the appropriate mental state of care may instead suffice to constitute the requisite fault. The presence of 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 that norm, the offence will be made out. As stated earlier, what constitutes a "marked departure" from the standard expected of a reasonably prudent driver is a matter of degree. … Although Willock concerned the offence of criminal negligence, an offence which is higher on the continuum of negligent driving, this observation is equally apt with respect to the offence of dangerous operation of a motor vehicle.

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

51 …The more difficult question is whether Mr. Beatty had the necessary mens rea. There is no evidence here of any deliberate intention to create a danger for other users of the highway that could provide an easy answer to that question. Indeed, the limited evidence that was adduced about the actual state of mind of the driver suggested rather that the dangerous conduct was due to a momentary lapse of attention. Hence, the trial judge was correct in finding that the question of mens rea in this case turns on whether Mr. Beatty's manner of driving, viewed on an objective basis, constitutes a marked departure from the norm.

Roy

[440] In Roy, the Supreme Court of Canada said this about the mens rea element:

(4) The Mens Rea

36 The focus of the mens rea analysis is on whether the dangerous manner of driving was the result of a marked departure from the standard of care which a reasonable person would have exercised in the same circumstances (Beatty, at para. 48). It is helpful to approach the 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.

(5) Proof of the "Marked Departure" Fault Element

39 Determining whether the required objective fault element has been proved will generally be a matter of drawing inferences from all of the circumstances. As Charron J. put it, the trier of fact must examine all of the evidence, including any evidence about the accused's actual state of mind (para. 43).

40 Generally, the existence of the required objective mens rea may be inferred from the fact that the accused drove in a manner that constituted a marked departure from the norm. However, even where the manner of driving is a marked departure from normal driving, the trier of fact must examine all of the circumstances to determine whether it is appropriate to draw the inference of fault from the manner of driving. The evidence may raise a doubt about whether, in the particular case, it is appropriate to draw the inference of a marked departure from the standard of care from the manner of driving. The underlying premise for finding fault based on objectively dangerous conduct that constitutes a marked departure from the norm is that a reasonable person in the position of the accused would have been aware of the risk posed by the manner of driving and would not have undertaken the activity: Beatty, at para. 37.

41 In other words, the question is whether the manner of driving which is a marked departure from the norm viewed in all of the circumstances, supports the inference that the driving was the result of a marked departure from the standard of care that a reasonable person in the same circumstances would have exhibited.

42 Driving which, objectively viewed, is simply dangerous, will not on its own support the inference that the accused departed markedly from the standard of care of a reasonable person in the circumstances (Charron J., at para. 49; see also McLachlin C.J., at para. 66, and Fish J., at para. 88). In other words, proof of the actus reus of the offence, without more, does not support a reasonable inference that the required fault element was present. Only driving that constitutes a marked departure from the norm may reasonably support that inference.

55 … However, on any realistic scenario consistent with the evidence, the time between visibility and impact would be only a few seconds. In my view, the appellant's decision to pull onto the highway is consistent with simple misjudgment of speed and distance in difficult conditions and poor visibility. The record here discloses a single and momentary error in judgment with tragic consequences. It does not support a reasonable inference that the appellant displayed a marked departure from the standard of care expected of a reasonable person in the [page83] same circumstances so as to justify conviction for the serious criminal offence of dangerous driving causing death.

[441] Most recently, the Supreme Court of Canada said this about the offence of dangerous driving in R. v. Chung, at paras. 22-27 and 29:

22 Although this Court in Roy and Beatty determined that momentary lapses in attention and judgment would usually not raise criminal liability, this was because momentary lapses often result from the "automatic and reflexive nature of driving" (Beatty, at para. 34) or "[s]imple carelessness, to which even the most prudent drivers may occasionally succumb" (Roy, at para. 37). These are examples of conduct that, when assessed in totality against the reasonable person standard, only represent a mere departure from the norm. Momentary conduct is not assessed differently from other dangerous conduct. Conduct that occurs over a brief period of time that creates foreseeable and immediate risks of serious consequences can still be a marked departure from the norm (Beatty, at para. 48). A reasonable person would have foreseen that rapidly accelerating towards a major intersection at a high speed creates a very real risk of a collision occurring within seconds. This is what actually occurred in Mr. Chung's case. Risky conduct at excessive speeds foreseeably can result in immediate consequences. Therefore, the fact that foreseeable consequences occur within a short period of time after someone engages in highly dangerous behaviour cannot preclude a finding of mens rea for dangerous driving.

23 Second, I find that the trial judge did not apply the correct legal test in Roy. In his reasons, he failed to determine whether a reasonable person in Mr. Chung's circumstances would have foreseen the risk from accelerating rapidly and speeding into that major intersection and taken actions to avoid it. This is not merely a matter of the trial judge failing to write out his thought process, but rather a matter of the trial judge not turning to the core question at issue: "whether the dangerous manner of driving was the result of a marked departure from the standard of care which a reasonable person would have exercised in the same circumstances" (Roy, at para. 36 (emphasis added)). The trial judge's reasons, interpreted as a whole, reveal that he failed to undertake this analysis.

24 Although trial judges are not required to set out their analysis in any particular way, the two questions in Roy, at para. 36, are helpful and emphasize the need to compare the accused's conduct to the conduct of a reasonable person in their circumstances, and by reference to all relevant evidence. This is essential for determining objective mens rea. At some point in the mens rea analysis, the trial judge must work with the facts as found and consider whether, in the totality of the circumstances, a reasonable person would have foreseen the risk and taken the same actions as the accused. Only when there has been an active engagement with the full picture of what occurred can the trial judge determine whether the accused's conduct was a marked departure from the conduct of a reasonable and prudent driver.

25 Instead of focussing on what a reasonable person would have foreseen and done in the circumstances, the trial judge engaged in reasoning focussed on the type (speeding) and duration (momentariness) of Mr. Chung's conduct, to the exclusion of the full picture. His analysis focussed on distinguishing cases where excessive speeding had been found to be a marked departure from the circumstances of this case, rather than examining the risks created by Mr. Chung's speeding. In other words, he focussed on what Mr. Chung did not do in comparison to these other cases, rather than asking the correct legal question and assessing what risks a reasonable person would foresee arising from Mr. Chung's momentary speeding in the circumstances.

26 Had the trial judge turned to consider the circumstances of this case fully and specifically, he would have addressed the fact that Mr. Chung's conduct did not only include momentary excessive speeding, but also narrowly missing another vehicle turning right in front of him, passing in the curb lane, and accelerating towards a major intersection while aware of at least two vehicles in the intersection. The trial judge found that Mr. Chung was not inattentive while driving, but did not consider how Mr. Chung's awareness of his surroundings contributed to his conduct being a marked departure from the conduct of a reasonable person. A full analysis in this case would have considered the duration of the speeding, as well as the accused's control of the car (he switched lanes and then accelerated), the magnitude of speeding (almost three times the speed limit), the location of speeding (approaching a major intersection), and the accused's awareness of at least two vehicles at the intersection as he approached it. The trial judge then had to consider whether, on these facts as found, a reasonable person would have foreseen the risk of endangering the public by engaging in this conduct and taken steps to avoid it, presumably by not driving so fast.

27 The duration and nature of the accused's conduct are only some of the factors to be considered with all of the circumstances in the mens rea analysis. They are not factors that can be taken out of context. It is conceivable that in some contexts, even grossly excessive speed may not establish a marked departure from the standard of care, while in other circumstances speed may not need to be grossly excessive in order to still be a marked departure. Courts must be careful to avoid fettering the analysis in Roy by adopting hard and fast rules regarding when isolated factors will or will not be marked departures. Although case law may be helpful in providing examples of what has previously been determined to be a marked departure, courts must still analyze the accused's actions relative to the reasonable person in the specific circumstances at issue.

29 On the facts as found by the trial judge, over a one block span, Mr. Chung moved into the curb lane, passed at least one car on the right, and accelerated to 140 km/h in a 50 km/h zone while approaching a major urban intersection and being aware of at least two other cars in the intersection. There is no evidence that the accused lost control of his vehicle. Concerning the required mental element, it is not necessary to find that Mr. Chung was subjectively aware of the risk of his conduct and intentionally created this risk. The test for mens rea is based on the reasonable person. A reasonable person would have foreseen the immediate risk of reaching a speed of almost three times the speed limit while accelerating towards a major city intersection. Mr. Chung's conduct in these circumstances is a marked departure from the norm.

4. Criminal Negligence

Section 219

[442] Section 219 of the Criminal Code defines criminal negligence as doing anything or omitting to do anything that is one’s duty to do that shows wanton or reckless disregard for the lives or safety of other persons.

R. v. Javanmardi, (SCC)

[443] In Javanmardi, the Supreme Court of Canada sets out the essential elements requiring proof beyond a reasonable doubt as follows:

19 The actus reus of criminal negligence causing death requires that the accused undertook an act -- or omitted to do anything that it was his or her legal duty to do -- and that the act or omission caused someone's death.

20 The fault element is that the accused's act or omission "shows wanton or reckless disregard for the lives or safety of other persons". Neither "wanton" nor "reckless" is defined in the Criminal Code, but in R. v. J.F., 2008 SCC 60, [2008] 3 S.C.R. 215, this Court confirmed that the offence of criminal negligence causing death imposes a modified objective standard of fault -- the objective "reasonable person" standard (paras. 7-9; see also R. v. Tutton, 1989 CanLII 103 (SCC), [1989] 1 S.C.R. 1392, at pp. 1429-31; R. v. Morrisey, 2000 SCC 39, [2000] 2 S.C.R. 90, at para. 19; R. v. Beatty, 2008 SCC 5, [2008] 1 S.C.R. 49, at para. 7).

21 As with other negligence-based criminal offences, the fault element of criminal negligence causing death is assessed by measuring the degree to which the accused's conduct departed from that of a reasonable person in the circumstances. For some negligence-based offences, such as dangerous driving, a "marked" departure satisfies the fault element (J.F., at para. 10; see also: Beatty, at para. 33; R. v. Roy, 2012 SCC 26, [2012] 2 S.C.R. 60, at para. 30; R. v. L. (J.) (2006), 2006 CanLII 805 (ON CA), 204 C.C.C. (3d) 324 (Ont. C.A.), at para. 15; R. v. Al-Kassem, 2015 ONCA 320, 78 M.V.R. (6th) 183, at para. 6). In the context of criminal negligence causing death, however, the requisite degree of departure has been described as an elevated one -- marked and substantial (J.F., at para. 9, applying Tutton, at pp. 1430-31, and R. v. Sharp (1984), 1984 CanLII 3487 (ON CA), 12 C.C.C. (3d) 428 (Ont. C.A.)).

22 These standards have much in common. They both ask whether the accused's actions created a risk to others, and whether "a reasonable person would have foreseen the risk and taken steps to avoid it if possible" (see Roy, at para. 36; Stewart, at p. 248). The distinction between them has been described as a matter of degree (see R. v. Fontaine, 2017 QCCA 1730, 41 C.R. (7th) 330, at para. 27; R. v. Blostein, 2014 MBCA 39, 306 Man. R. (2d) 15, at para. 14). As Healy J.A. explained in Fontaine:

These differences of degree cannot be measured by a ruler, a thermometer or any other instrument of calibrated scale. The words "marked and substantial" departure are adjectives used to paraphrase or interpret "wanton or reckless disregard" in section 219 of the Code but they do not, and cannot, indicate any objective and fixed order of magnitude that would have prescriptive value from one case to another. As with the assessment of conduct in cases of criminal negligence, the assessment of fault by the trier of fact is entirely contextual. [para. 27]

23 … In any event, the parties argued on the basis that the proper threshold for criminal negligence causing death is a "marked and substantial" departure, and that is the basis on which these reasons approach the issue. A conviction for criminal negligence causing death therefore requires the Crown to prove that the accused undertook an act, or omitted to do anything that it was her legal duty to do, and that the act or omission caused the death of another person (the actus reus). Based on J.F., the Crown must also establish that the accused's conduct constituted a marked and substantial departure from the conduct of a reasonable person in the accused's circumstances (the fault element).

R. v. Bhangal, (Ont. C.A.)

[444] In Bhangal, the accused was convicted by a jury of dangerous driving and criminal negligence. His appeal was dismissed. The Court of Appeal said this:

6 In our view, the trial judge properly instructed the jury on the elements of criminal negligence causing death and explained the difference between that offence and the lesser offence of dangerous driving causing death.

7 He first instructed the jury about the elements of dangerous driving causing death and then told the jury that more was required for a person to be guilty of criminal negligence causing death. He explained that the appellant's conduct must show a wanton or reckless disregard for the lives or safety of other people and that the conduct must be a marked and substantial departure from what a reasonably prudent person would do in the same circumstances. He explained how Crown counsel might prove the required marked and substantial departure from what a reasonably prudent person would have done.

8 In a response to a question from the jury seeking clarification about the difference between the offences of dangerous driving causing death and criminal negligence causing death, he repeated the relevant portions of his charge and added that in the case of criminal negligence causing death, the conduct must be more marked than for dangerous driving in both the physical and mental elements of the offence. …

R. v M.R., (Ont. C.A.)

[445] The Court of Appeal in M.R. said:

28 The test for criminal negligence as set out in s. 219 requires the Crown to show that an accused's conduct or omission represented a "marked and substantial departure" from the conduct of a reasonably prudent person in the circumstances. See for example, R. v. J.F., 2008 SCC 60, [2008] 3 S.C.R. 215, at para. 9.

29 The high standard of a "marked and substantial departure" from the conduct of a reasonably prudent person applies to both the physical and mental elements of the offence: R. v. J.L. (2006), 2006 CanLII 805 (ON CA), 204 C.C.C. (3d) 324 (Ont. C.A.), at para. 16. In addressing the offence of criminal negligence causing death, a court should first look to the actus reus of the offence and determine if the conduct or omission involved meets the marked and substantial departure standard. If it does, the court should then consider the question of whether the mens rea is established.

30 The mental element for criminal negligence is described as a modified objective test: R. v. Hundal, 1993 CanLII 120 (SCC), [1993] 1 S.C.R. 867, at p. 887, Cory J.; R. v. Tutton, 1989 CanLII 103 (SCC), [1989] 1 S.C.R. 1392, at p. 1413, McIntyre J. A court must consider the facts existing at the time in light of the accused's perception of those facts and assess whether the accused's conduct, in view of his or her perception of the facts, constituted a marked and substantial departure from what would be reasonable in the circumstances: see R. v. Tutton, at p. 1432. In considering this issue, the court should consider whether the accused either adverted to the risk involved and disregarded it, or failed to direct his or her mind to the risk and the need to take care at all. In most cases, the mental element can be inferred from the accused's conduct or omission: see R. v. Creighton, 1993 CanLII 61 (SCC), [1993] 3 S.C.R. 3, at pp. 73-74, McLachlin J. (as she then was); R. v. Hundal, at p. 872, McLachlin J., concurring; R. v. Tutton, at p. 1432, McIntyre J.

31 … The court held that the test is objective foreseeability of the risk of bodily harm which is neither trivial nor transitory. As stated by McLachlin J., at p. 75, the question is "whether the reasonable person in all the circumstances would have foreseen the risk of bodily harm". I see no reason why the reasoning in Creighton on this issue should not apply equally to the offence of criminal negligence causing death. The offences of unlawful act manslaughter and criminal negligence causing death have much in common. Importantly, for present purposes, both involve a dangerous or unlawful act that causes death. From both a logical and policy standpoint, it makes sense that the mental element relating to the consequence of the offending conduct be the same for both offences.

R. v. Alli, (O.C.J.)

[446] In Alli, Justice Paciocco described the offence of criminal negligence as follows:

83 As indicated, the elements required for Count 1, criminal negligence causing death while street racing, are similar to those required for the offence of dangerous driving causing death while street racing. There are two material differences between these offences where the act of driving is said to have caused the death.

84 First, for a criminal negligence conviction the conduct must not merely be dangerous to the public. It must be so dangerous that it "shows wanton or reckless disregard for the lives or safety of others." This means that the negligence is significant enough that, viewing it objectively, the act is wanton and reckless on its face. As it has been put, the wantonness or recklessness must be "obvious.": R. v. L.(J.) (2006), 2006 CanLII 805 (ON CA), 204 C.C.C. (3d) 324 at para. 18 (Ont. C.A.). "Wanton" means heedlessly, ungoverned, undisciplined or an "unrestrained disregard for consequences." Recklessness, in this context means "heedless of consequences, headlong, irresponsible." In R. v. M.R. the Ontario Court of Appeal treated this actus reus element as a "high standard" being satisfied if the conduct constitutes a "marked and substantial departure from the conduct of a reasonably prudent person.

85 Second, the modified objective mens rea element in criminal negligence offences is more intense than the "marked departure" modified objective test applied to dangerous driving. With respect to criminal negligence, the mens rea requirement again requires a "marked and substantial departure" which can, in appropriate cases, be inferred from the accused's conduct or omission: R. v. M.R. at para. 29-20 (Ont. C.A.). Describing the mens rea requirement in the R. v. J.(F.) 2008 SCC 60, [2008] 3 S.C.R. 215, Justice Fish said in the factual context of that case at para. 9:

"On the count alleging criminal negligence, the Crown was bound to show that the respondent's omission represented a marked and substantial departure (as opposed to a marked departure) from the conduct of a reasonably prudent parent in circumstances where the accused recognized and ran an obvious and serious risk to the life of his child, or alternatively, gave no thought to that risk."

The objective mens rea inquiry is not a simple duplication of the actus reus inquiry in spite of the repetition of the marked and substantial departure inquiry and the obvious overlap. The mens rea element permits an inquiry into the capacity of the accused to meet the relevant standard, as well as an examination of particular non-personal characteristics of the event that may affect the outcome. In R. v. M.R. the Court explained at para. 30:

"A court must consider the facts existing at the time in light of the accused's perception of those facts and assess whether the accused's conduct, in view of his or her perception of the facts, constituted a marked and substantial departure from what would be reasonable in the circumstances. In considering the issue, the court should consider whether the accused either adverted to the risk involved and disregarded it, or failed to direct his or her mind to the risk and the need to take care at all." (citations omitted)

86 In applying these concepts the Court in M.R. directs judges to consider the actus reus first before examining the mens rea. Only if the conduct meets the actus reus standards is it necessary to go on and consider the mens rea.

[447] In Alli, the court found that the second driver involved in the street race case was guilty of dangerous driving causing death. But he found that the actus reus of criminal negligence had not been proven beyond a reasonable doubt on bases that included, it was not a preplanned race; the racing occurred over 400 m only; although the accused drove at Queensway speed, he did not block other traffic: he remained in his own lane; he did not try to go by the other driver. There was no evidence of vehicles or pedestrians on that stretch of the road. No one had to take evasive action.

[448] These latter two factors are in play in Mr. Tabanao’s case.

R. v. Willock, (Ont. C.A.)

[449] Willock is a case where the accused was convicted of criminal negligence causing death and bodily harm at trial, but the Court of Appeal allowed the appeal and entered an acquittal.

29 Criminal negligence in the context of driving-related allegations of criminal negligence requires proof that the accused's conduct constituted a marked and substantial departure from that expected of the reasonable driver and proof that the conduct demonstrated a wanton or reckless disregard for the lives or safety of other persons. The requisite wanton or reckless disregard may, but not must, be inferred from proof of conduct that constitutes a marked and substantial departure from that expected of the reasonable driver…

30 This was an unusual criminal negligence trial in at least two respects. First, there was little, if any, dispute as to the credibility or reliability of any of the witnesses who testified. Second, the conduct said to constitute the act of criminal negligence occurred entirely within a two to three second timeframe. There was nothing in the appellant's conduct or his manner of driving before that brief timeframe that offered any support for the Crown's case. To the contrary, the appellant's driving prior to those fateful seconds was entirely proper.

31 There can be no doubt that conduct occurring in a two to three second interval can amount to a marked departure from the standard of a reasonable person and demonstrate a wanton or reckless disregard for the life or safety of others. However, conduct that occurs in such a brief timeframe in the course of driving, which is otherwise proper in all respects, is more suggestive of the civil rather than the criminal end of the negligence continuum: see R. v. Waite (Ont. C.A.), supra, at 342; R. v. Hundel (1993), 1993 CanLII 120 (SCC), 79 C.C.C. (3d) 97 at 106 (S.C.C.).

32 I think the appellant's conduct during the two or three seconds in issue could only reasonably be said to constitute a marked and substantial departure from the conduct expected of a reasonable driver if the appellant deliberately jerked the steering wheel to cause the vehicle to swerve, presumably to either show off or frighten his young passengers. If that finding was reasonably open on the evidence, then the appellant could properly have been convicted of criminal negligence, as he was unable to regain control of the vehicle before it crossed the median and collided with the westbound vehicle. As indicated, I read the trial judge as making that finding. With respect, I do not think that finding was reasonably available on the totality of the evidence.

33 Ms. Neilson's evidence does not help the Crown establish that the appellant deliberately caused the vehicle to swerve. Her observation of the slight swerve or correction by the appellant's vehicle some three kilometres before it left the road cannot be reasonably attributed to any deliberate act by the appellant. Nor can it be connected to the accident. Whatever happened to the appellant's vehicle at Howard Road, it was so slight that it went unnoticed by Ms. McLean. The appellant's driving in the ensuing three kilometres was normal and demonstrated no failure to control the vehicle. Ms. Neilson's description of the fishtailing at Central Avenue is entirely consistent with the appellant losing control of his vehicle. However, it offers no basis for any inference that the appellant had deliberately initiated the swerving that led to the vehicle going out of control.

34 The Crown's case stands or falls on Ms. McLean's evidence. Six significant findings flow from her testimony. First, the appellant was driving the vehicle in a proper manner until he reached the Central Avenue overpass. Second, as the vehicle came out of the Central Avenue overpass, it jerked dramatically. Third, Ms. McLean could not say what caused this dramatic jerking of the vehicle. Fourth, within two or three seconds after the initial jerk, the vehicle had lost control and entered the median. Fifth, the appellant did not regain control of the vehicle at any point during that two to three second interval. Sixth, Ms. McLean saw the appellant turning the steering wheel back and forth after she felt the first significant jerk, but could not say whether he was turning the wheel to make the jerking worse or in an attempt to regain control of the vehicle.

35 Ms. McLean's evidence does not provide a basis for a reasonable inference that the appellant deliberately caused what Ms. McLean described as the first dramatic jerking of the vehicle as it passed under the Central Avenue overpass. Nor does her evidence offer a basis for a reasonable inference that the appellant deliberately caused the subsequent jerking of the vehicle by turning the steering wheel back and forth. As she candidly acknowledged, he may have been trying to bring the vehicle under control or he may have been trying to make it swerve or jerk.

36 In my assessment of the evidence, the most that can be said is that the appellant suddenly lost control of his vehicle and was unable to regain control of the vehicle before it entered the median. This conclusion certainly suggests a momentary lapse of attention by the appellant, but, in my view, cannot reasonably sustain a finding that his driving amounted to criminal negligence or dangerous driving under the Criminal Code.

[450] Further case law assists this court in its consideration of the evidence of the accused’s actual state of mind.

[451] In Bhangal, para.10, the evidence was that the accused knew about the regulation with regard to the hours that a commercial vehicle driver could be on the road driving.

R. v. Ibrahim, (Ont. C.A.)

[452] In Ibrahim, the court noted at paras. 27-34 as follows:

(b) The relevance of an accused person's explanation

27 Although dangerous driving engages a modified objective standard of fault, the Supreme Court has emphasized the potential significance of any explanation offered by the accused person. …

28 Charron J. explained, at para. 43, that while the test requires an objective assessment, the accused's actual state of mind may be relevant in making the assessment of whether the conduct amounted to a marked departure:

...it may be useful to keep in mind that while the modified objective test calls for an objective assessment of the accused's manner of driving, evidence about the accused's actual state of mind, if any, may also be relevant in determining the presence of sufficient mens rea. [Emphasis in original.]

Accordingly, Charron J. summarized, at para. 43, the mens rea component of the offence, and explained how evidence of the accused's state of mind and explanations offered by the accused should be considered by the trier of fact:

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. [Emphasis added.]

29 Charron J. went on to elaborate on how to apply this aspect of the test for dangerous driving, at para. 47, under the heading "Determining the Mens Rea". She emphasized that while subjective mens rea is not an element of the offence, evidence of the accused's actual state of mind forms part of the totality of the evidence that the trier of fact must consider. She said the following, at para. 47:

In determining the question of mens rea, the court should consider the totality of the evidence, including evidence, if any, about the accused's actual state of mind. As discussed at length above, the mens rea requirement for the offence of dangerous driving will be satisfied by applying a modified objective test. This means that, unlike offences that can only be committed if the accused possesses a subjective form of mensrea, it is not necessary for the Crown to prove that the accused had a positive state of mind, such as intent, recklessness or wilful blindness. Of course, this does not mean that the actual state of mind of the accused is irrelevant. For example, if proof is made that a driver purposely drove into the path of an oncoming vehicle in an intentionally dangerous manner for the purpose of scaring the passengers of that vehicle or impressing someone in his own vehicle with his bravado, the requirement of mens rea will easily be met. One way of looking at it is to say that the subjective mens rea of intentionally creating a danger for other users of the highway within the meaning of s. 249 of the Criminal Code constitutes a "marked departure" from the standard expected of a reasonably prudent driver. [Emphasis added.]

30 While the example provided by Charron J. in the latter portion of the passage quoted above suggests intentionally driving in a dangerous manner may amount to a marked departure, she also explained that, in different circumstances, evidence of the accused's state of mind may raise a reasonable doubt as to whether the conduct was the result of a marked departure. In the following passage, which is critical to the analysis in this case, Charron J. links the testimony of the accused to reasonable doubt, at para. 49:

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

31 Cromwell J. followed this approach in Roy, at paras. 39-41. Cromwell J. explained that determining whether the marked departure fault element is established will generally require the trier of fact to draw inferences from all the circumstances: at para. 39. This in turn requires the trier of fact to examine all of the evidence, including evidence about the accused's actual state of mind.

32 Although evidence of an accused person's state of mind is relevant to fault for dangerous driving, it operates differently within the modified objective framework than it would in the case of an offence based on subjective mens rea. Factual assertions in an accused person's evidence - about things observed, actions performed, the sequence of events, etc. - may be helpful to a jury in determining whether the Crown has proved the fault requirements for dangerous driving. Such testimony may well raise a reasonable doubt.

33 However, given that these subjective perceptions must be considered within an objective framework, their acceptance does not necessarily lead to a verdict of not guilty. That is, it may be possible for the trier of fact to accept the accused's evidence about what occurred but find that the marked departure standard has been proved. Still, as Beatty makes clear, the testimony of an accused person about his or her perceptions may be capable of raising a reasonable doubt about whether a reasonable person in the circumstances would have been aware of the risk created by the conduct. Indeed, the wording in Beatty at para. 49 directs that where such evidence is adduced, the trier of fact must consider whether this evidence raises a reasonable doubt. This is consistent with the underlying justification for the modified objective test as explained by Charron J. in Beatty, at para. 8:

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. ... 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.

34 Therefore, in light of the direction in Beatty, the testimony of an accused person may be relevant to the actus reus of dangerous driving, as well as the two interrelated mens rea elements: (i) whether the conduct in question constitutes a marked departure from the standard of care that a reasonable person would observe in the accused's circumstances; and (ii) whether a reasonable person in similar circumstances would have been aware of the risk of the danger involved in the conduct manifested by the accused.

R. v. Sippel, (SCJ)

[453] In Sippel, the accused was charged with criminal negligence and dangerous driving. The court noted that the accused’s trial testimony was totally different from the explanation given by the accused to police about the collision. The learned judge applied the analysis in R. v. W. (D.) 1991 CanLII 93 (SCC), [1991] 1 SCR 742. (para.23). At paragraph 25, the learned judge found that the evidence did not establish exactly what the accused was doing in the seconds before he collided with the three cyclists as he approached them at a speed well in excess of the posted limit. However, she determined that it was clear that his attention was not sufficiently focused on them or on the road. Had it been, the collision would not have occurred. She made the following comments at paras. 37-39:

37 In order to secure a conviction for the offence of criminal negligence, the Crown must establish that the accused's conduct represented a marked and substantial departure from the conduct of a reasonably prudent person in those circumstances. This high standard applies to both the physical and mental elements of the offence (R. v. M R., [2011] O.J. No. 1017 (C.A.), at paragraphs 28 and 29). The question is whether the accused either adverted to the risk involved and disregarded it, or failed to direct his mind to the risk and the need to take care at all (at paragraph 30).

38 In R. v. J.L., 2006 CanLII 805 (ON CA), [2006] O.J. No. 131 (C.A.), the Court made it clear that the moral blameworthiness that attaches to the offence of criminal negligence is at the high end of the spectrum. Further along the spectrum is dangerous driving, followed by careless driving (at paragraph 14). To establish that conduct is wanton or reckless, the consequences must be more obvious than a risk of injury that would have been foreseen by a reasonable person. All of the circumstances surrounding the offence must be considered (at paragraphs 18 and 19).

39 In R. v. Aleksev, 2016 ONSC 1834, [2016] O.J. No. 1962 (S.C.J.), the accused was found guilty of dangerous driving, criminal negligence and manslaughter after driving through a stale red light at a high rate of speed and killing a cyclist. While it was not possible to determine his precise speed, Trotter J. was satisfied that the accused was driving well above the speed limit. There was some evidence that as he approached the intersection the accused removed his attention from the road. Trotter J. found that the combination of excessive speed and distraction was a marked departure from the standard of care expected of a reasonable person in those circumstances. There was evidence of reckless driving immediately prior to the collision that involved high speed and a near miss with a school bus. This pattern of driving was sufficient to constitute the offences of criminal negligence and manslaughter.

5. Included Offence

[454] Dangerous driving is an included offence for criminally negligent driving. Section 662(5) of the Criminal Code.

6. Difference between Dangerous Driving and Criminal Negligence

R. v. Dunford, (Sask. Ct. Q.B.)

[455] In addition to what was said in Alli, to which I have already referred, the Saskatchewan Court of Queen’s bench describes the difference between the offences in R. v. Dunford. The accused in that case was convicted at trial of dangerous driving causing death but found not guilty of criminal negligence. The victim was the flag person working in a construction zone. The accused was a driver of a tractor-trailer unit travelling at high speed in the construction zone.

[456] A more detailed description of the facts is found in paras. 9 - 13:

9 … Mr. Dunford advised the police as follows:

Ah, on the return trip ah, I wasn't paying attention. I must admit I did pass a few, I wasn't paying attention. I did pass a few, ah, trucks previous. And I was looking at my paperwork, pleased with myself basically. I looked up and didn't realize that the inaudible [road works] was there so I swerved...

10 In court, Mr. Dunford provided further details, stating that he had rolled down a window in his vehicle which caused the wind to catch and displace the documents. He returned the documents to their folder and when he looked up he saw Ms. Richards.

11 The point at which Mr. Dunford saw Ms. Richards was described by Mr. Dunford in the police interview. He stated:

Basically when I looked up I realized she was [basically] there you know.

12 Mr. Dunford explained further that when he first saw Ms. Richards, his vehicle was in the centre of the northbound lane and Ms. Richards had been about 6 metres (20 feet) ahead of his vehicle. Ms. Richards was in the middle of the northbound lane of traffic by a pylon which was also in the middle of the lane. …

13 Mr. Dunford said he braked hard and swerved in an attempt to avoid Ms. Richards, but rather than avoid her, his vehicle struck her. Mr. Dunford recalled that Ms. Richards was wearing yellow florescent clothing and, although Mr. Dunford did not specifically recall observing Ms. Richards hold a sign, he thought she was likely doing so. Based on Mr. Dunford's evidence, I find that Ms. Richards was at her flagging station when struck by Mr. Dunford's vehicle.

[457] After finding Mr. Dunford guilty of dangerous driving causing death, the court considered the charge of criminal negligence.

a. Criminal Negligence in the Operation of a Motor Vehicle Causing Death

136 As noted by the Supreme Court in R v Anderson, 1990 CanLII 128 (SCC), [1990] 1 SCR 265 [Anderson] at paras 10 -- 11 regarding an assessment of the offence of criminal negligence:

... This area of the law, both here and in other common law countries, has proved to be one of the most difficult and uncertain in the whole of the criminal field.

i. The Actus Reus

137 This element must meet a higher standard than that of dangerous operation of a motor vehicle.

138 For the offence of criminal negligence in the operation of a motor vehicle, the Crown must prove beyond a reasonable doubt that Mr. Dunford drove in a manner that showed wanton or reckless disregard for the lives or safety of other persons. The term wanton, as previously noted, has been defined in the jurisprudence as "heedless", "ungoverned", "undisciplined" or "an unrestrained disregard for the consequences". Reckless has been defined as "heedless of the consequences, headlong, irresponsible". "Heedless" has been equated with a "complete disregard" for the consequences of one's actions.

139 In R v Hubble, 24 Sask R 156 (Sask QB) at para 8, this Court stated the following with respect to the offence of criminal negligence:

[8] A person travelling on a highway has a duty to use reasonable care to avoid causing damage to others and the failure to do so is negligence. Criminal negligence goes beyond that breach of duty and consists of conduct which is wanton and reckless. That is the conduct of the person who commits the act of criminal negligence is heedless and indifferent to the consequences of his actions and in addition shows an unrestrained disregard for the consequences of those actions. A wanton and reckless action may result even though the actor may not have intended harm but he must have been aware that the resultant damage or possibility of damage was probable when embarking on such action. It is equivalent to wilful misconduct because it shows complete disregard for the consequences of one's actions.

140 In evaluating whether Mr. Dunford's conduct amounted to a wanton or reckless disregard for the lives and safety of others, all of the circumstances surrounding the offence must be examined. …

141 While having considered the entirety of the evidence, I note the following: Mr. Dunford did not pay attention to road signage while travelling through a construction area. He passed vehicles when prohibited from doing so and was not prepared to respond appropriately to those signs. However, he did not exceed 100 km per hour. As it impacted the semi-trucks, his passing actions were acceptable.

142 I cannot conclude that his conduct can be said to have shown a complete or unrestrained disregard for the consequences of his actions. Mr. Dunford's conduct was undoubtedly flawed, but when considered in the context of all the evidence, I cannot conclude that it meets, beyond a reasonable doubt, the very high standard of wanton or reckless disregard for the lives or safety of other person.

143 Despite this conclusion, I will go on to consider whether the mens rea component of this offence has been proved beyond a reasonable doubt.

ii. The Mens Rea

144 The mens rea for this offence is established if there is a demonstrated marked and substantial departure from the conduct of a reasonably prudent person in the circumstances in which the accused either recognized and ran an obvious and serious risk or, alternatively, gave no thought to that risk.

145 To meet this standard, a high degree of negligence, greater than that required for a dangerous driving offence, must be demonstrated.

146 There is no evidence that Mr. Dunford recognized and ran an obvious and serious risk with his manner of driving. The pertinent question is whether Mr. Dunford drove while giving no thought to that risk, bearing in mind that this standard must be more egregious than the marked departure required for the offence of dangerous operation of a motor vehicle. The marked departure standard requires the failure of an accused person to foresee a risk and take steps to avoid it.

147 As with the actus reus element, I cannot conclude that the mens rea element for criminal negligence in the operation of a motor vehicle has been proved beyond a reasonable doubt. That is, I am not satisfied beyond a reasonable doubt that Mr. Dunford's conduct amounts to a marked and substantial departure from the conduct of a reasonably prudent drive in the circumstances in which Mr. Dunford gave no thought to the risk caused by his manner of driving that exceeds the standard required for dangerous driving. I am cognizant that mens rea may be inferred from the conduct to some extent. The difference between the mens rea for dangerous driving and criminal negligence in the operation of a motor vehicle is a matter of degree, with the latter being the more serious offence. The Crown has not demonstrated that it has met this more stringent standard beyond a reasonable doubt.

7. Duty of a Professional Driver

[458] Case law has described the duty of a professional tractor-trailer unit driver like Mr. Tabanao as follows:

R. v. Parkin, (SCJ), paras. 22 and 27:

22 It is essential that tractor-trailers, such as the one involved in this accident, keep a reasonable distance from vehicles in front so that these heavy vehicles can pull up and stop with safety. This is the whole purpose of s. 158(2) of the Highway Traffic Act, which provides:

Headway for commercial vehicles - the driver of a commercial motor vehicle when driving on a highway at a speed exceeding 60 kilometres per hour shall not follow within 60 metres of another motor vehicle, but this shall not be construed to prevent a commercial motor vehicle overtaking and passing another motor vehicle.

27 Tractor-trailers have the potential to do great harm such as one observes in the present case. Drivers operating such large, heavy rigs with the capacity to create so much havoc must be especially vigilant. That is because such tractor-trailers cannot stop safely if they do not observe a reasonable distance. Ms. Hobley's vehicle was there to be seen and was not seen. Mr. Parkin was travelling too quickly even though he was observing the ordinary speed limit. This is a marked departure from prudent conduct. A conviction will register.

R. v. Du Jardin, (SCJ), para. 26:

26 This was not just a driving offence and an inadvertent driver. Truck drivers are required to be specially trained and licensed because of the enormous consequences that can flow from dangerous driving conduct. The Defendant's moral culpability was given prominence by his use of marijuana.

R. v. Parmar, (OCJ), paras. 76-77 and 103-104;

76 Mr. Parmar was the operator of a commercial vehicle for which a higher standard of driving is expected.

77 Tractor trailers by their sheer size and weight, potentially makes them lethal weapons when driven dangerously.

103 Truck drivers are required to be specially trained and licensed because of the enormous consequences that can flow from dangerous driving conduct and therefore extra care is expected of them: R. v. Du Jardin [2009] O.J. No. 636 (SCJ) and R. v. Singh, supra.

104 Professional drivers are required to exercise more care and vigilance, especially when a larger and heavier vehicle is involved: R. v. Ernst [2006] A.J. No. 949 (Alberta Queen's Bench).

R. v. Rai, (Ont. CA), para. 31:

31 In our view, the important contextual circumstances grounding the trial judge's analysis and ultimate conclusion include:

*The appellant was on duty as a professional dump truck driver.

*Driving a big rig carries additional responsibilities versus an ordinary motor vehicle because the heavy truck with a raisable box "can hurt and kill people in many ways".

8. Circumstantial Evidence

[459] To some extent, this is the case of circumstantial evidence.

[460] The Supreme Court of Canada in R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, instructs this court as to how to consider such evidence:

30 … Telling the jury that an inference of guilt drawn from circumstantial evidence should be the only reasonable inference that such evidence permits will often be a succinct and accurate way of helping the jury to guard against the risk of "filling in the blanks" by too quickly overlooking reasonable alternative inferences. …

36 … a reasonable doubt "is a doubt based on reason and common sense which must be logically based upon the evidence or lack of evidence"… A certain gap in the evidence may result in inferences other than guilt. But those inferences must be reasonable given the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense.

37 When assessing circumstantial evidence, the trier of fact should consider "other plausible theor[ies]" and "other reasonable possibilities" which are inconsistent with guilt… I agree with the appellant that the Crown thus may need to negative these reasonable possibilities, but certainly does not need to "negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused"…

38 … the basic question is whether the circumstantial evidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference other than that the accused is guilty.

55 A verdict is reasonable if it is one that a properly instructed jury acting judicially could reasonably have rendered… Where the Crown's case depends on circumstantial evidence, the question becomes whether the trier of fact, acting judicially, could reasonably be satisfied that the accused's guilt was the only reasonable conclusion available on the totality of the evidence…

56 …[c]ircumstantial evidence does not have to totally exclude other conceivable inferences" and that a verdict is not unreasonable simply because "the alternatives do not raise a doubt" in the jury's mind. Most importantly, "[i]t is still fundamentally for the trier [of] fact to decide if any proposed alternative way of looking at the case is reasonable enough to raise a doubt."

9. Do Not Consider Personal Characteristics

[461] In Beatty, the Supreme Court of Canada provided this guidance to trial judges:

39 … Lamer J. favoured an objective approach but, in an attempt to alleviate its potential harshness, he would have made generous allowances for factors particular to the accused, such as youth, mental development and education: see for example, Tutton, at p. 1434. Under this approach, the young and inexperienced driver's conduct would be measured against the standard expected of a reasonably prudent but young and inexperienced driver. This approach, however, was not favoured by other members of the Court. As Wilson J. stated in Tutton, this individualized approach "sets out a fluctuating standard which in my view undermines the principles of equality and individual responsibility which should pervade the criminal law" (p. 1418).

40 Some of the language used in Hundal nonetheless left uncertainty about the degree to which personal characteristics could form part of the circumstances which must be taken into account in applying the modified objective test. (See for example the references to "certain personal factors" at p. 883 and to "human frailties" at p. 887.) This remaining uncertainty was later resolved in Creighton. Short of incapacity to appreciate the risk or incapacity to avoid creating it, personal attributes such as age, experience and education are not relevant. 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. To reiterate the example used above, the reasonable person becomes the one who "without prior warning, suffers a totally unexpected heart attack, epileptic seizure or detached retina" or becomes the one who "in the absence of any warning or knowledge of its possible effects, takes a prescribed medication which suddenly and unexpectedly" causes him to drive in a manner that is dangerous to the public. By so placing the reasonable person, the test is not personalized and the standard remains that of a reasonably prudent driver, but it is appropriately contextualized. 3.4 Restatement of the Test in Hundal

[462] In Alli, the accused was inexperienced as a driver, was immature, and had just turned 18, subject to full criminal responsibility, four days earlier.

[463] The court in R. v. Williams, (S.C.J.), said this about the consideration of such personal characteristics:

Personal Characteristics

134 The defence asserts that the factors of vision, hearing and unfamiliarity with Strong Road should be considered as factors in the court's mens rea assessment.

136 Whether frailties or personal characteristics are factors which must be taken in account was an oft debated issue before R. v. Creighton, 1993 CanLII 61 (SCC), [1993] 3 S.C.R. 3; R. v. Beatty, 2008 SCC 5, [2008] 1 S.C.R. 49, at para. 40. Now it has been resolved for over twenty years. "Short of incapacity to appreciate the risk or incapacity to avoid creating it, personal attributes such as age, experience and education are not relevant." Beatty, at para. 40. Common examples of the types of incapacity the court will consider include circumstances where the accused, without prior warning, suffers a heart attack, an epileptic seizure or a detached retina. Beatty, at para. 40. As Lamer C.J.C. aptly pointed out in Creigton at p. 30,

[W]hile a person with cataracts cannot be faulted for having reduced vision, he or she may be expected to avoid activity in which that limitation will either create risk or render him or her unable to manage risk which is inherent in an activity (driving, for example). The reasonable person is expected to compensate for his or her frailties, to the extent he or she is conscious of them and able to do so.

137 Thus, persons who are aware of a personal limitation but continue to engage in activities for which their limitations may be an impairment are precluded from relying on their known limitation as an incapacity in this context. R. v. Robinson, 2007 CarswellOnt 1085 (S.C.), at paras. 55-58.

138 Here, Mr. Williams says he has had significant vision and hearing loss as a result of being kicked by a horse when he was nine years of age. He admitted he has known about this limitation since that time yet he still drove motor vehicles. His decision to drive his children on June 10, 2012, knowing these limitations, was voluntary on his part. These are not the type of characteristics which can or should be considered in the mens rea analysis. Thus, they will not be considered.

139 With regard to the accused's lack of familiarity with Strong Road, I note that driving on an unfamiliar stretch of road is not a unique or unfamiliar experience. This lack of experience on a particular road is precisely the type of personal attribute that is not relevant. I shall not consider it.

[464] Defence counsel urged that Mr. Tabanao’s prior rear end collision and training is such a personal attribute and should not be considered by the court.

[465] I disagree.

[466] Mr. Tabanao’s prior collision and training are not such personal attributes within the meaning of these cases.

[467] His prior collision and training are evidence of his actual state of mind at the time of the collision in question, just as in Bhangal.

[468] That is the purpose for which I ruled that Ex. 32, the Erb accident report dated September 13, 2015, to be admissible in this trial - as evidence of the accused’s actual state of mind at the time of the crash.

[469] It is not a personal attribute such as poor vision or impaired hearing or inexperienced youth as mentioned in the cases.

[470] Such evidence will not be used for propensity reasoning or reasoning that because he is of bad character he is deserving of punishment.

10. W.D. Analysis

[471] Counsel did not make submissions on the applicability of the WD principle and analysis in this case.

R. v. Ibrahim, (Ont. C.A.)

[472] However, the Court of Appeal has instructed trial judges in Ibrahim at paras. 37-38, 48-49 and 63-65, as follows:

37 The classic W.(D.) formulation will not always be appropriate; it depends on the context: R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 23; R. v. J.H.S., 2008 SCC 30, [2008] 2 S.C.R. 152, at para. 13. For example, it may be inappropriate to give the instruction when the accused person's testimony, even if believed, does not negate criminal liability: R. v. McClenaghan, 2010 ABCA 222, 258 C.C.C. (3d) 1178, at para. 31, leave to appeal refused, [2010] S.C.C.A. No. 353. In other situations, the instruction must be modified. For example, in R. v. Thiara, 2010 BCCA 415, 79 C.R. (6th) 259, it was held that the trial judge did not err in modifying her W.(D.) instructions in light of the fact that the appellant's evidence was partially inculpatory and partially exculpatory.

38 Objective fault components present challenges for the classic W.(D.) framework. The issue has been addressed infrequently by appellate courts. However, as the following review of the case law suggests, if there is a trend to be discerned from the cases, it is to dispense with such an instruction altogether when dealing with objective fault requirements. The question on this appeal is whether that approach sits comfortably with Charron J.'s discussion in Beatty about evidence of the accused person's state of mind, and an accused person's explanation in response to a charge of dangerous driving. As discussed below, the better course in cases involving a charge of dangerous driving is to provide a modified W.(D.) instruction.

48 But this is not the end of the inquiry. The accused person's perceptions of the situation may be capable of contributing to reasonable doubt on whether the modified objective standard is met. This is reflected in the words of Charron J. in Beatty, at para. 49 (reproduced above), when she said, "the trier of fact must consider evidence about the actual state of mind of the accused, if any, to determine whether it raises a reasonable doubt about whether a reasonable person in the accused's position would have been aware of the risk created by this conduct."

49 In these circumstances, the first prong of the classic W.(D.) formulation is inapplicable. However, whether accepted as true or not, evidence of an accused person's state of mind may be capable of raising a reasonable doubt on whether any of the elements of dangerous driving have been established by the Crown. This is precisely the point that a W.(D.) instruction is meant to bring home to the jury - that the verdict must be based on the whole of the evidence, and the jury must consider whether the evidence as a whole raises a reasonable doubt: Watt's Manual of Criminal Jury Instructions, at pp. 272-273; Dinardo, at para. 23.

63 This approach may be adapted to the context of dangerous driving. One suggested approach would include the following two elements:

1. If you accept the accused's evidence and, on the basis of it, you have a reasonable doubt about whether the Crown has satisfied any one of the offence elements required to prove dangerous driving, as I have explained those elements to you, you will find the accused not guilty.

2. Even if you do not accept the accused's evidence, if, after considering it alone or in conjunction with the other evidence, you have a reasonable doubt whether the Crown has satisfied any one of the elements required to prove dangerous driving, as I have explained those elements to you, you will find the accused not guilty.

64 It would helpful at this juncture to remind the jury of the elements of dangerous driving, stressing the modified objective nature of liability for this offence, as discussed in the passage from Beatty (at para. 43), reproduced at para. 28 above.

65 … Nevertheless, should the appellant testify again, the instructions should make it clear that his testimony, whether accepted as true or not, may be capable of raising a reasonable doubt on whether the elements of dangerous driving have been proved beyond a reasonable doubt.

[473] I will deal with the explanation given by Mr.Tabanao in his statement at the scene, and the evidence favourable to Mr. Tabanao in accordance with these principles.

R. v. Sippel, (SCJ)

[474] As I have stated, Justice Bird applied the WD analysis in Sippel.

IX. FINDINGS WITH RESPECT TO FACTS IN DISPUTE

Bodily Harm – Bradley Binder

[475] From the evidence of Mr. Binder and having found him to be an impressive, credible and reliable witness, firm in his answers and not prone to embellishment or exaggeration, I am completely satisfied that the injuries which he suffered from the significant impact that he described to his vehicle in the collision resulted in bodily harm, within the meaning of the legal authorities. R. v. Moquin, 2010 MBCA 22, [2010] M.J. No. 46, and ss. 2, Criminal Code.

Causation of the deaths and bodily harm

[476] This was an admission at the outset of the trial.

[477] Counsel did not address the issue in the course of their submissions at the conclusion of the trial, as there was no need to, based on the admission.

[478] I am completely satisfied that the deaths of the occupants of the Ford Focus and the bodily injury suffered by the other 3 persons has been proven beyond a reasonable doubt to have been caused by the operation by Mr. Tabanao of the Erb tractor trailer unit. See Williams, para. 165 and Menezes, para. 87 and on, in the context of a second driver participating in street racing where the other participant crashes and dies.

Travelling in a Group

[479] There is no need for defence to prove anything.

[480] The defence suggests that the CA, tanker, MO and Garda vehicles were travelling together closely in a group in the sense that they had the benefit of cues from each other, that were not available to Mr. Tabanao who was travelling alone.

[481] With respect, the evidence does not support that suggestion and does not leave me with a reasonable doubt about it.

[482] The evidence of the 3 drivers whose evidence is before the court and the passenger is that it was their observations of the brake lights and taillights and hazard lights of the many vehicles ahead of them that put them on alert and caused them initially to slow down.

[483] From the evidence of Patrick Sevigny that he had passed the other vehicles and that he was travelling at 105 km/h, it is clear that he was travelling faster than the other 3 vehicles. After he passed each of them, he had moved back to the right and was travelling in the right-hand lane. He had passed the Garda, on all of the evidence despite his misstatement, at Gananoque as it entered onto the 401. Ex. 10 shows that the Garda re-entered onto the 401 at about 12:25 AM and continued at a speed of 98 km/h, for approximately 11 minutes prior to the collision. It travelled at a slower speed than the CA over that distance. Patrick Sevigny testified that he was stopped for about one minute before the tanker and the MO came in behind him. The MO was stopped for 5 to 10 seconds before he heard a bang.

[484] Mr. Binder said he was driving at 60 mph. and that it was not far past the overpass that he noticed a bunch of four ways and brake lights on up ahead of him. There were four or five transports with very noticeable flashers which could be seen from a long way away. He testified that a safe following distance is 300 to 400 feet when travelling at 100 km/h because it takes a long time for these tractor-trailer units to stop. He testified that he saw the flashers and brake lights on the CA unit that was ahead of him. He did not testify that he was travelling in a group of vehicles.

[485] Parminder Singh said he started to slow down 700 or 800 metres before he reached the lineup of traffic because he saw the brake lights of the slow traffic ahead of him “trucks”, and also because he had seen the construction sign located beyond, to the west of, the crash scene. The Garda vehicle came up behind him to within 15 to 20 feet at the point he started driving slowly. He said that there were no vehicles ahead of him but that when he saw the lights at a distance he slowed down.

[486] Mr. Williams said the Garda vehicle was travelling in the left-hand lane at the Joyceville overpass. He saw transports, more than one, ahead of them with their hazard lights on. When they were in the left-hand lane and saw the hazard lights and brake lights of the vehicles ahead, the traffic was in both lanes ahead of them. They moved over into the right-hand lane and slowed down. He said they put their hazard lights on just before they caught up to the traffic ahead. On the record, there is no evidence that he was travelling in a group.

[487] I find that the 4 vehicles were not travelling in a group that gave those drivers additional visual cues that were not available to Mr. Tabanao, as was submitted by defence counsel, and I am not left with a reasonable doubt about that.

The Merging of the Traffic ahead had ended

[488] I repeat there is no burden of proof on defence.

[489] Defence counsel submits that the merging of the traffic ahead had ended, thus depriving Mr. Tabanao of that visual cue.

[490] Again, with respect, the evidence does not leave me with a reasonable doubt about this.

[491] Patrick Sevigny testified that when he stopped, there were 30 vehicles in front of him, in both lanes. He had been stopped for 1 minute and 5 to 10 seconds when he heard the bang.

[492] Bradley Binder said that when he caught up to the traffic, he stopped. There may have been a couple of vehicles up ahead of him trying to get into his lane from the fast lane, the left lane. He testified that he was in the stop-and-go traffic for between two to five minutes before he heard the bang.

[493] Parminder Singh testified that at about the overpass at Joyceville, he saw that the left lane was closing and every truck was changing lanes to the right one. He had changed from the left lane into the right lane. He said that when he stopped his truck there were still two lanes open ahead of him.

[494] Mr. Williams testified that they had been in the left-hand lane and that the hazard lights and brake lights of the vehicles ahead of them were in both lanes ahead of them. The westbound traffic in front of them in their lane was moving to the right. He was in stop-and-go traffic for about five minutes before impact. Ex. 23 shows it was for two and a half minutes.

[495] Patryck Fijalkowski told police that at the time he pulled into the stop-and-go lineup of traffic there was traffic ahead of him in both lanes. He was forced to take drastic evasive action within a minute and a half of being in the traffic jam. He said that at that point the majority of the traffic was in the right-hand lane.

[496] Contrary to the submission of defence counsel, I find that the evidence is that the merging had not stopped for any significant time prior to the Erb impacting the Ford Focus such as it would deprive Mr. Tabanao of any visual cues from the merging of traffic going on ahead of him, and I am left with no reasonable doubt about that.

Last second Braking

[497] I find that on the basis of the testimony of Constable Hewitt concerning the data extracted from the ECM of the Erb and the analysis of it, and the evidence from Mr. Fijalkowski’s statement, there was no last-minute braking by Mr. Tabanao. I am left with no reasonable doubt about this.

Last Second Steering

[498] Defence counsel submits that the evidence of Scott Walters provides evidence of last-second steering by Mr. Tabanao, or that at least it raises a reasonable doubt about that.

[499] To make a finding of fact on this issue, I first turn to my assessment of the evidence of Scott Walters.

[500] Except to the extent that the evidence of Scott Walters agrees with or accepts the other evidence which I accept in this trial, I do not accept his evidence and I do not find that it raises a reasonable doubt about the guilt of Mr. Tabanao.

[501] My reasons are as follows.

[502] As I have stated previously, his evidence concerning Driver Distractions and Their Associated Time amounts to no more than speculation and has no factual relevance to this case. The record is silent as to what, if any, authoritative stature or recognition his sources bear. It is obvious that his stated distractions and times could fall within a very wide range of possibilities depending on the circumstances of the case. This evidence has no probative value whatsoever in this case.

[503] His evidence about Looked but Failed to See is similarly of no assistance. There is no authoritative support whatsoever or evidential background support in this case for this theory. Mr. Walters assumes, “in our opinion, Mr. Tabanao may not have expected vehicles ahead to be stopped or travelling slowly on Highway 401 at the time of the collision which could have affected his sampling strategy and could be factors supporting a looked but failed to see problem occurring in this collision as well as distracting Mr. Tabanao’s attention from the roadway ahead”. P.8. This assumption is at complete odds with the only direct evidence of what Mr. Tabanao was doing, in his own words, namely, reaching down, and at complete odds with all of the witnesses who testified that slowdowns, stop-and-go traffic, due to construction or other problems are common on the 401 between May and November. Mr. Walters’ opinion is inconsistent with the eyewitness evidence of the other drivers and passenger as to what they saw, perceived and how they safely reacted to what was going on ahead in sufficient time to bring their vehicles to a safe slow speed and stop as necessary.

[504] Offering such conjecture to the court by way of expert testimony diminishes greatly the value of the balance of the evidence given by Mr. Walters.

[505] Also, in related fashion, it is to be noted that both he and SSgt Doolan recognize the authority of Dr. Muttart. However, Mr. Walters did not follow or rely upon the modelling done by Dr. Muttart. Instead, he preferred his own geometry based on first principles calculations. Mr. Walters testified that he relied upon research by another researcher, Markkula, in regard to his SAVT opinion. He did not provide any information concerning the authoritative status, principles relied upon, peer review and acceptance by other expert collision reconstructionists or otherwise to permit the court to make any decision about the expert evidence value of that research. He did not provide any evidence to the court about whether his methods are accepted in the accident reconstruction field as accurate and trust-worthy. The absence of such information causes the court great concern as to Mr. Walters’ opinion, especially in the face of Dr. Muttart’s accepted methodology.

[506] In his Report, Mr. Walters did not mention:

(a) The visual cues that could or would arise from the 5 red lights across the top of both the MO trailer and the Garda vehicle;

(b) The evidence of Mr. Williams, that was definitive, that the Garda had activated its 4-way flashers and so had the truck ahead of it, the MO; in Mr. Walters’ testimony he agreed that 4-ways on the Garda would be a “very strong cue even at 1000 metres” … He testified that the question is what does a driver do with that cue, is the truck broken down, how much slower is that truck travelling. he said it depends on how the driver interprets the four-way flashers, “if cues are misinterpreted problems can happen”;

(c) That the rear of the MO trailer and the Garda vehicle were white in colour or how headlights from a vehicle following each would illuminate the rear of those vehicles or how that could be a visual cue to oncoming drivers; and

(d) The fact that many other drivers were able to slow and stop their vehicles without a crash. He testified when it was pointed out to him in cross-examination that the other drivers were able to interpret the cues ahead of them, that there were sufficient cues ahead for those other many motorists. When he was asked why that opinion was not in his report, he replied, “it’s implied”.

[507] It is reasonable to conclude that such important factors should have been addressed in his report concerning driver response time and braking distances.

[508] Additionally, Mr. Walters demonstrated a lack of independence, and an inclination to give evidence favourable to Mr. Tabanao without consideration of other obvious relevant factors including,

(a) His repeated response that the headlight piece and red fiberglass from the Erb tractor found inside the rear of the open door to the MO trailer could have been put there by the first responders;

(b) His response “I don’t know”, to the question concerning whether additional cues would be available to a following driver arising from vehicles ahead negotiating the slight left-hand 5 degree turn;

(c) When it was put to him that reaching down in the cab of the Erb at 200 or 100 metres from the crash scene would be extremely dangerous at a speed of 100 km/h , he was mostly non-responsive and commented that “dangerous” is not a scientific term;

(d) He was non-responsive to a question suggesting that seeing brake lights in one lane only ahead would be a greater cue than seeing taillights in both lanes ahead, responding “brake lights occur routinely”, … ;

(e) His comment, “Brake lights could come on because of a defect in the switch”.

(f) In response to the question as to whether traffic merging ahead from the fast lane into the slow lane, with the turn signals on, would be a cue to a driver approaching from behind, he responded that “merging is not necessarily a cue that the traffic ahead is stopped. It could be that the vehicles were just merging”;

(g) In response to the question suggesting that the more vehicles there were reacting ahead and therefore the more lights would provide more cues to an oncoming driver, he responded that that would be correct provided there were not too many cues which would cause confusion. He agreed it would get a driver’s attention, but then commented “but what you do with it?”.

[509] Cross-examination by the Crown included:

Q. Well know [sic], you’re saying that it doesn’t matter because they’re not going to perceive until they’re too close and in [sic] accident is inevitable based on your calculation?

A. Correct.

Q. So based on your calculations alone, collisions on the 401 highway should be happening every night with almost every vehicle whenever there [sic] stopped traffic ahead?

A. Based on these calculations, yes. Clearly other motorists, most of the motorists on the 401, are picking up other cues of traffic ahead that allows them to bring themselves to a stop.

Q. And in fact, that’s another piece of evidence that you didn’t give a lot of weight to in your assessment here because you know from all the evidence of all the other drivers and 3 km long backup, everyone else was able to detect, find the cues, gradually slow down and come to a safe stop and then go again; Correct?

A. I agree, yes.

Q. So you’re – these calculations really aren’t very helpful because you’re missing something? Everyone else was able to stop and in fact, their evidence was that they noticed the problem as far back as a kilometre and certainly by 600 to 700 m were starting to slow down?

A. I agree.

Q. So all of your calculations essentially go out the window because you’re missing something everyone saw the cues [sic] that you’re not including in your calculation; right?

A. I agree with you.

And later:

Q. Okay. So in your analysis here, how do you explain all the drivers been [sic] able to react and perceive and slow down?

A. They were able to properly interpret the cues ahead of them and perceive, react and bring their vehicles to an – to a stop.

Q. So your opinion as an accident Reconstructionist was there was sufficient cues for a person paying attention to have reacted in plenty of time?

A. They are sufficient for the other motorists who brought their vehicles to a stop.

[510] Further concern about the evidence of Mr. Walters arises from his stated assumptions in “s. 2.0