COURT FILE NO.: 19-108
DATE: 20201120
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
Montana Gabriel
Defendant
Isabel Blanchard and Alexandre Simard, counsel for the Crown
Jeffrey Langevin, counsel for the Defendant
HEARD: September 8,9,10,11,14,15,16 17,18, 21, 2020
amended reasons for judgment
champagne, j.
Introduction
[1] Montana Gabriel is charged with impaired driving causing death, impaired driving causing bodily harm, driving with over 80 milligrams of alcohol in 100 millilitres of blood causing death, driving with over 80 milligrams of alcohol in 100 millilitres of blood causing bodily harm, criminal negligence causing death and criminal negligence causing bodily harm.
[2] The charges arise from an August 16-17, 2018 all terrain vehicle (ATV) accident which resulted in serious injuries to two young women, Chasity Shedrick and Jasmine Saunders. Tragically, Ms. Saunders died in hospital over two months after the accident.
[3] On the evening of August 16, 2018, a group of friends were invited to Ms. Gabriel’s home for a party and bonfire in her backyard. The invited guests brought their own alcoholic beverages and, between 8:00 p.m. and approximately 10:40 p.m., the group socialized and had drinks in the house and around the bonfire.
[4] At about 10:40 p.m., Ms. Gabriel, Ms. Saunders, Ms. Shedrick and another invited guest, Alexandra Daoust, decided to go the Spencerville Drummond’s gas station and LCBO to purchase more alcohol. They were driven by Ms. Gabriel’s sister, Paige, who had not been drinking. The young women returned to Ms. Gabriel’s home at approximately 11:30 p.m. and approximately 10 minutes later, Ms. Gabriel left the property on her ATV with Ms. Shedrick and Ms. Saunders as passengers. When the trio did not return, Ms. Gabriel’s sister, accompanied by an invited guest named Dillen Johnson, drove up the road to look for them and found that they had had a terrible accident with the ATV. Ms. Shedrick would spend over two weeks in the hospital and be left with permanent damage to her right wrist and Ms. Saunders, having suffered a serious traumatic brain injury, would die of complications from that injury over two months later.
Position of the Parties
Crown
[5] The Crown’s position is that Ms. Gabriel was impaired by alcohol and was the driver of the ATV when it crashed. The Crown submits Ms. Gabriel permitted passengers on her ATV when it had no capacity to take passengers. She allowed Ms. Saunders to ride on the ATV without a helmet, and she drove the vehicle in a manner that showed a wanton and reckless disregard for the lives of her passengers, causing them injury and death.
The Defence’s Position
[6] At the outset of this trial the identity of the driver of the ATV was identified as an issue. By the end of the trial, defence counsel’s position appeared to concede Ms. Gabriel was the driver of the ATV, but that issue will nonetheless be addressed in my analysis.
[7] The defence argues the court should accept that Ms. Gabriel’s blood alcohol concentration was 43 milligrams of alcohol in 100 millilitres of blood at the time of the accident and that she was not impaired. The defence contends that witnesses who testified at the trial, including paramedics, firefighters and police, did not note visual signs of impairment in Ms. Gabriel and evidence of bolus drinking should give the court a reasonable doubt as to whether Ms. Gabriel was impaired at the time of the accident.
[8] The defence’s position is that there is no evidence of bad driving and that this is simply a tragic and horrific accident which does not amount to criminal conduct.
The Evidence
[9] The Crown adduced evidence from 18 witnesses. The defence called no evidence.
[10] The evidence of Chasity Shedrick was central to this trial. Ms. Shedrick is 21 years old today. She remembers August 16, 2018 fairly well. She was 18 years old, turning 19 the following day. She and Jasmine Saunders were at her home and were planning something for her birthday the following day. Her evidence was that she and Ms. Saunders were invited to a bonfire at Ms. Gabriel’s home that evening. This invitation by Ms. Gabriel was confirmed by another invited guest, Derek Johnson.
[11] Ms. Shedrick testified she and Ms. Saunders arrived at Ms. Gabriel’s home between 8:00 p.m. and 8:30 p.m. She recalled that it was just starting to get dark. Her evidence was that, when they arrived, she noted Ms. Gabriel and her sister Paige in attendance along with Zachary Broniszeski, Zachary Kayuk, Alexandra Daoust and someone else she did not know. Two other invited guests, Dillen Johnson and his brother Derek Johnson, were there as well.
[12] Ms. Shedrick testified that upon their arrival Ms. Gabriel brought her and Ms. Saunders into the house and Ms. Shedrick opened one of two Palm Bay coolers she had brought with her. She observed Ms. Gabriel give Ms. Saunders a mini bottle of tequila to drink. Ms. Shedrick testified that throughout the evening she observed Ms. Gabriel with a 26-ounce bottle of whiskey in one hand and a cooler in the other. She observed Ms. Gabriel drinking from the bottle of whiskey and chasing the drinks with a sip of an alcoholic cooler. She did not count how many sips of whiskey and cooler Ms. Gabriel consumed, but she stated she saw her drink from the bottle throughout the evening. She agreed in cross-examination that Ms. Gabriel had 4 or 5 drinks. This evidence is confirmed by Ms. Daoust who testified that she, Ms. Gabriel and Ms. Saunders drank from the whiskey bottle throughout the evening. The Crown adduced a video of Ms. Gabriel dancing at the fire with a whiskey bottle in her hand and photos of the young women, taken in the house facing a mirror, all with drinks in their hands. Ms. Gabriel had a 26-ounce bottle of whiskey in her hand.
[13] Ms. Daoust estimated that she and Ms. Gabriel had consumed approximately equal amounts of alcohol between the time she arrived at the party and the time she, Ms. Gabriel, Ms. Saunders and Ms. Shedrick went to Spencerville to purchase more alcohol and returned. Ms. Daoust’s evidence was that she, Ms. Gabriel, Ms. Saunders and Ms. Shedrick had a good “buzz on” before they left for Spencerville. She described them as coherent but not sober. She testified that Ms. Shedrick had less to drink than she and Ms. Gabriel. Upon their return from Spencerville, Ms. Daoust described herself as very intoxicated to the point she passed out from alcohol consumption. Her evidence was that Ms. Gabriel was intoxicated. Ms. Daoust’s level of intoxication was confirmed by her boyfriend Zach B.
[14] Dillen Johnson’s evidence was that he observed all of the invited guests drinking at some point and he observed Ms. Gabriel drinking what he believed was whiskey or possibly vodka. Zach K. observed everyone to be drinking that evening and saw “all of the girls” consume whiskey.
[15] Ms. Shedrick’s evidence was that a decision was made to go to the LCBO in Spencerville before it closed at 11:00 p.m. to purchase more alcohol. Departing at approximately 10:40 p.m., Ms. Gabriel’s sister Paige drove to Spencerville as she had not been drinking. Ms. Shedrick testified she was in the front seat of the car while Ms. Gabriel, Ms. Daoust and Ms. Saunders were in the back seat. Her evidence was that Ms. Gabriel brought her whiskey bottle with her and she observed Ms. Gabriel drinking from the bottle on the way to Spencerville and on the way back. On cross-examination she conceded she did not know how much alcohol Ms. Gabriel had consumed. Ms. Daoust’s evidence was that she, Ms. Gabriel and Ms. Saunders all drank from the whiskey bottle on the way to Spencerville and on the way back. She did not quantify how much each of them had to drink.
[16] Ms. Shedrick’s evidence was that Ms. Gabriel went into the LCBO twice. The first time she bought three coolers and a “mickey” of whiskey. She went back into the store a second time for beer she had forgotten to purchase. This evidence is corroborated by time- stamped video footage at the LCBO and by time-stamped receipts from Drummond’s gas station, one at 22:57 p.m. and one at 22:59 p.m. They show purchases of a “mickey” of Wisers, a Palm Bay raspberry cooler, a Smirnoff blackberry cooler, a Black Fly raspberry cooler as well as a 15 pack of cans of Busch beer. Ms. Gabriel was identified in the video footage by Ms. Shedrick as the purchaser.
[17] Ms. Shedrick testified that prior to returning to Ms. Gabriel’s home, Paige went to a gas station to obtain gas. This was verified via video footage. Ms. Shedrick’s evidence was that, on returning to Ms. Gabriel’s home, they encountered a train at a railway crossing and Ms. Gabriel, Ms. Saunders and Ms. Daoust got out of the vehicle and danced to a song while the car moved slowly beside them. Ms. Daoust confirmed this evidence, testifying the dance, called the “Kiki dance”, was a trend on social media. The video is time stamped at 11:27 p.m.. The young women can be seen dancing, laughing and being silly. Notably, Ms. Gabriel has a 26-ounce bottle of alcohol in one hand and a cooler in the other. She was not observed drinking from the bottle or cooler in the video.
[18] Ms. Shedrick testified that the group got back into the car and drove back to Ms. Gabriel’s home. A Google map tendered as an exhibit through Constable Tyler Kelly showed Ms. Gabriel’s home to be approximately a four-minute drive from the railroad track at which the “Kiki dance” took place.
[19] Ms. Shedrick testified that upon the group’s return from Spencerville, Ms. Daoust went into the house because she was not feeling well. Ms. Daoust and her boyfriend Zach B. confirmed she (Ms. Daoust) was very intoxicated at this point.
[20] Ms. Shedrick stated she saw Ms. Gabriel have two sips of whiskey upon returning from Spencerville prior to departing on the ATV. She was uncertain as to whether Ms. Gabriel had consumed any Black Fly cooler but agreed with defence counsel that she probably had. Ms. Shedrick described Ms. Gabriel as “more drunk than I [Ms. Shedrick] was”. In cross-examination, she testified that Ms. Gabriel was running around, dancing and jumping and that this was not her normal behaviour. Ms. Shedrick’s evidence was that she had known Ms. Gabriel since high school, and she was not bubbly and outgoing. Ms. Gabriel’s behaviour was also observed by Ms. Daoust, who said Ms. Gabriel was acting silly. Dillen Johnson, who observed Ms. Gabriel said she was acting silly, joking around, having fun like someone who was buzzed. Mr. Johnson conceded in cross-examination that he had not monitored Ms. Gabriel’s consumption of alcohol and that she could have been sober. The behaviour described by Ms. Shedrick, Ms. Daoust and Mr. Johnson is evident on the video of the young women doing the Kiki dance at the railroad track. Ms. Gabriel’s behaviour was also noted by Zach K. who described Ms. Gabriel as bizarre when she returned from Spencerville. His evidence was that Ms. Gabriel offered him a drink of whiskey and was visibly intoxicated. He testified Ms. Gabriel had slurred speech and was affectionate toward him, which was unusual as they did not have that type of relationship.
[21] Ms. Shedrick testified that approximately 10 minutes after their return from Spencerville, Ms. Gabriel decided to take her ATV for a ride, with Ms. Saunders and Ms. Shedrick as passengers. Her evidence was that Ms. Gabriel drove and was wearing a helmet, Ms. Saunders sat behind Ms. Gabriel and was not wearing a helmet and Ms. Shedrick donned a helmet and was seated on the plastic part of the ATV at the back as there was no seat available for her to sit on. Her evidence regarding who was driving was confirmed by Zach B., Zach K. and Derek Johnson, all of whom identified Ms. Gabriel as the driver. Derek Johnson and Zach K.’s evidence was they tried to stop Ms. Gabriel from leaving as they did not think anybody should have been driving that night in light of all the drinking by everyone throughout the evening.
[22] Ms. Shedrick testified that she and Ms. Gabriel had helmets on and Ms. Saunders, who was sitting between them, did not. She testified that once Ms. Gabriel left her driveway, she drove “too fast” and Ms. Shedrick was scared. Her evidence was that she and Ms. Saunders yelled at Ms. Gabriel to slow down, which at first was unheeded. Ms. Gabriel eventually stopped to inquire “what [their] problem was”. According to Ms. Shedrick, Ms. Gabriel seemed annoyed and turned around heading back toward her house. Ms. Shedrick’s evidence was that the three remained on the ATV in the same position when Ms. Gabriel turned around. Ms. Shedrick testified she felt Ms. Gabriel was again going too fast and yelled at Ms. Gabriel to slow down. Ms. Shedrick has no idea how the accident occurred. Her last recollection before waking up in the hospital was Ms. Saunders yelling “Oh my God, Montana”.
[23] A reconstruction of the accident shows that Ms. Gabriel travelled on the opposite side of the road to traffic, left the roadway at a shallow angle, entered a ditch and travelled for approximately 60 meters before encountering a culvert and an incline to a field access, resulting in her ATV becoming airborne at a 14 degree angle, striking an open gate, and rolling in the ditch, throwing the driver and two passengers from the ATV.
[24] Shortly after midnight, the trio was found in the ditch by Ms. Gabriel’s sister Paige, and Dillen Johnson. Paige called 911 and firefighters, ambulances and police were dispatched to the scene.
[25] Ms. Saunders was unconscious and appeared to have suffered a serious head injury. She was the first patient transported to the Ottawa Hospital Civic Campus. Ms. Shedrick was conscious but has no memory of speaking to anyone at the crash scene. She suffered multiple injuries and was also transported to the Civic.
[26] At the scene, Ms. Gabriel was conscious and was assessed and treated by two firefighters and two paramedics whose sole function was the rescue, medical assessment and treatment of their patient. In the course of their duties, they spoke to Ms. Gabriel and asked a number of questions. When asked by firefighter Christopher Paulino if she was the driver of the vehicle, Ms. Gabriel first said she was, then said she was unsure. Ms. Gabriel told paramedic Jenny Plamondon that she was the driver of the ATV. Ms. Gabriel was also asked by firefighters if she had been drinking. The question was described as a standard one in order to properly assess and treat a patient. Ms. Gabriel told firefighter Christopher Paulino that she had had “a couple of shots” but did not specify what she drank or when. When asked by firefighter Trevor Riopelle if she had been drinking or driving, she did not respond. Ms. Gabriel told paramedic Kurtis Holmes that she had consumed wine and whiskey but she did not specify how much or when. When asked by him if she had been driving, she did not respond. Mr. Riopelle detected a strong odour of alcohol coming from Ms. Gabriel’s mouth, as did paramedic Holmes, who noted the odour was stronger once he was in the back of the ambulance with Ms. Gabriel with the doors closed. Both firefighter Paulino and paramedics Plamondon and Holmes described Ms. Gabriel as alert and mostly responsive other than as to details of the accident. None observed physical signs of impairment such as slurring. All indicated they did not observe Ms. Gabriel’s motor skills as she was sitting in the ditch and was placed onto a backboard to move her from the ditch and onto a stretcher, which was loaded into a waiting ambulance. None of the first responders observed Ms. Gabriel walking or standing.
[27] As would be expected, a number of police officers were dispatched to the scene. OPP Sergeant David Budzinski arrived on scene at 12:41 a.m. and assumed the role of coordinator of the police response. Acting on information he received from police and first responders, he directed his officers to conduct interviews with the partygoers and with Ms. Gabriel and Ms. Shedrick when appropriate.
[28] Constable Brad Prieur arrived at the scene and observed Ms. Gabriel speaking with firefighters and paramedics. He also noted an odour of alcohol on her breath. Constable Prieur was also told by firefighter Paulino that Ms. Gabriel had disclosed she’d been driving and had had “a couple of shots” of alcohol. Constable Prieur’s evidence was that at 1:14 a.m., this information led him to form reasonable suspicion Ms. Gabriel had been driving and had consumed alcohol. He testified that Ms. Gabriel was being transported to the Winchester Hospital at the time. Constable Prieur drove to the hospital, tested his Alcotest Dragger screening device and waited for permission from Ms. Gabriel’s treating doctors to make a demand. He received permission from Dr. Yu to make the demand at 2:18 a.m. His evidence was that at 2:19 a.m. he made the demand, reading from an OPP script. Ms. Gabriel blew into the device at 2:20 a.m. and registered a fail at 2:21 a.m. At 2:23 a.m., Constable Prieur read Ms. Gabriel her rights and, at 2:24 a.m., he cautioned her. He read her a breath demand at 2:27 a.m. but before a breath technician could attend, Ms. Gabriel was transported to the Ottawa Hospital Civic campus. This ended Constable Prieur’s involvement in the matter. Arrangements were made for a breath technician to attend the Civic to obtain a breath sample from Ms. Gabriel.
[29] Constable Serge Francis, a breath technician with the Ottawa OPP, arrived at the Civic Campus of the Ottawa Hospital at 3:48 a.m. Ms. Gabriel arrived at the hospital at 4:00 a.m.. followed by Sargeant Budzinski and Constable Tyler Kelly. Constable Francis was briefed by Sergeant Budzinski and Constable Kelly about the accident and their reason to believe Ms. Gabriel was the driver of the ATV and that she had consumed alcohol. Constable Francis waited for Ms. Gabriel’s treating physician to give him permission to obtain a breath sample and, when he was given permission to set up in the room occupied by Ms. Gabriel, he noted she exhibited “a strong odour of alcohol”. Having been briefed by Sargeant Budzinski and Constable Kelly and detecting an odour of alcohol on Ms. Gabriel’s breath, Constable Francis formed reasonable and probable grounds to make a demand for a breath sample from Ms. Gabriel. He set up his equipment and ran all of the required tests on the instrument to ensure it was properly calibrated and he properly cautioned Ms. Gabriel before she gave her first breath sample at 5:33 a.m., when she registered 76 milligrams of alcohol in 100 millilitres of blood. Her second breath sample at 5:54 a.m. registered 73 milligrams of alcohol in 100 millilitres of blood. Those results were conveyed to Sergeant Budzinski and Constable Kelly.
[30] While Ms. Gabriel was at the hospital, blood was drawn, which was later the subject of a warrant and was seized and sent to the Centre of Forensic Science along with the breath samples for analysis. The manner in which the breath samples and blood sample were obtained and sent for analysis and the continuity of those samples were not challenged. I am satisfied on the evidence they were indeed the samples obtained from Ms. Gabriel and that they were properly obtained.
The Accident
[31] An investigation into the accident took place, including a collision reconstruction.
[32] Constable Jason Foster was called by the Crown as an expert collision reconstructionist. His qualification was admitted by the defence, but I nonetheless required the Crown to adduce evidence of Constable Foster’s qualifications to satisfy myself that he met the Mohan test: R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9. On the evidence adduced, including Constable Foster’s training and previous qualifications as an expert, I was satisfied he met the test and he was qualified as an expert. Constable Foster also testified in his capacity as an OPP officer on the safety issues associated with the type of ATV involved in the accident.
[33] Constable Foster’s collision reconstruction report concluded that Ms. Gabriel drove off the roadway, which had no shoulder, at a shallow angle, travelling 67.29 metres in the opposite direction to traffic, in a ditch filled with tall grass, before encountering a culvert with an incline to a farm field access lane, which had a gate open at 45 degrees. The ATV left the ground at a 14 degree angle when it hit the incline and struck the open gate. A scuff mark in the dirt just prior to the point the ATV’s tires departed from the ground may indicate an attempt at evasive action, but that was not clear. The ATV’s left front tire struck the gate at a height of 68 cm and its right front tire struck the gate at a height of 91 cm before continuing across the laneway into the ditch on the other side, where it rolled, ejecting Ms. Gabriel and her two passengers.
[34] Using the weight and dimensions of a similar ATV, unoccupied by a driver or passengers, and using the height at which the ATV struck the gate and the center mass, Constable Foster calculated Ms. Gabriel was travelling at between 35 and 54 kilometers per hour in the ditch. In cross-examination, Constable Foster conceded that his speed calculations could not be precise and would change with the addition of three occupants. Adding three occupants of approximately 68 – 70 kilos each, which would affect the center mass, Constable Foster agreed that the speed of the ATV could be 28-33 kilometers per hour.
[35] Constable Foster’s lay opinion evidence regarding the safety requirements of Ms. Gabriel’s ATV were based on his OPP training and experience driving ATVs and from the ATV’s Operator’s Guide. He also gave evidence regarding the safety sticker affixed to Ms. Gabriel’s ATV. His evidence revealed Ms. Gabriel’s ATV was not meant to carry any passengers. The operator’s guide and the sticker affixed to the ATV warned operators not to exceed the seating capacity, not to operate the ATV on a paved road, not to operate the ATV on public roadways, not to operate the vehicle when impaired by drugs or alcohol, and not to attempt wheelies or stunts and to use a helmet when operating the vehicle. Constable Foster testified that taking on passengers on an ATV not meant for passengers could reduce the balance of the ATV and affect a driver’s ability to manipulate the handlebars and/or impact the driver’s ability to activate the rear brake. His evidence was also that driving in a ditch with tall grass at night, going between 28 and 33 km/h, was unsafe, as the driver would be unable to see obstructions, holes or bumps.
[36] Constable Tyler Kelly testified that according to the Highway Traffic Act, R.S.O. 1990, c. H.8, as well as municipal laws, bylaws and regulations for South Dundas and Glengarry Counties, Ms. Gabriel’s ATV was prohibited from being driven on the subject portion of Broken Second Road (South of the 401) where the accident occurred. Constable Kelly’s evidence was that ATVs were permitted to be on Broken Second Road North of the 401, but even then, were only permitted to be driven between 6 a.m. and 10 p.m. and passengers were not permitted unless the ATV was designed for passengers. In addition, where the posted speed limit was 50 km/h or less, an ATV was required to travel no more than 20 km/h and where the posted speed limit was 80 km per hour or less the ATV was not permitted to exceed 50 km/h. The bylaw also specified that, if permitted on a roadway, an ATV was required to travel in the same direction as traffic on the shoulder; should there be no shoulder, or if a shoulder was obstructed, the ATV should travel on the right side of the roadway in the same direction as traffic.
Blood and Breath Samples
[37] The question of Ms. Gabriel’s sobriety was a central feature in this trial. Ms. Gabriel’s breath samples as well as a blood sample drawn at the Civic Hospital at 4:15 a.m. were sent to the Centre of Forensic Science (CFS) for analysis. The analyses were performed by Natalie Desrosiers, PhD, a forensic scientist specializing in toxicology. Dr. Desrosiers left her employment at the CFS prior to trial. Her reports were therefore reviewed and adopted by Randal John Warren, a toxicologist at CFS. While his qualifications as an expert were conceded by the defence, I nonetheless required the Crown to adduce evidence of his expertise in order to satisfy myself that he met the requirements of the Mohan test. He did and was qualified as an expert. He adopted the reports of his colleague Dr. Desrosiers. Those reports were not disputed by the defence and revealed the following “back calculation” of Ms. Gabriel’s blood alcohol concentration (BAC), assuming no bolus drinking had occurred 15 minutes before the accident or afterwards:
a) Using breath samples of 76 and 73 milligrams of alcohol in 100 milliliters of blood obtained from the Intoxilyzer 8000C at 5:33 a.m. and 5:54 a.m. respectively, Ms. Gabriel’s projected blood alcohol concentration between 10:55 p.m. and 12:13 a.m. was between 100 and 200 milligrams alcohol in 100 millilitres of blood.
b) Using the blood sample drawn at the Civil Hospital at 4:15 a.m., the CFS calculated the BAC would have been 92 milligrams of alcohol in 100 millilitres of blood and projected Ms. Gabriel’s BAC to be between 112 and 199 milligrams of alcohol in 100 millilitres of blood between 10:55 p.m. and 12:13 a.m.
[38] At trial, the Crown asked Mr. Warren to perform additional calculations using a time range between 11:40 p.m. and 12:10 a.m. Using a BAC of 92 milligrams of alcohol in 100 millilitres of blood, Mr. Warren calculated that Ms. Gabriel’s BAC would have been between 113 and 184 milligrams of alcohol in 100 millilitres of blood in that time range. Mr. Warren was also asked by the Crown to do the same calculation as to time, but adding an ounce of whiskey and an ounce of Black Fly cooler, consumed within 15 minutes before driving. He used a measure of 40 percent alcohol for the whiskey and 7.5 percent alcohol for the Black Fly cooler. Ms. Gabriel’s projected BAC, had she consumed this quantity of alcohol within 15 minutes prior to driving, was estimated between 103 and 154 milligrams of alcohol in 100 millilitres of blood. The calculation using the consumption of two ounces of whiskey and 2 ounces of BlackFly Cooler within 15 minutes before driving reduced the projected BAC to a range of 73 – 124 milligrams of alcohol in 100 millilitres of blood. Defence counsel asked Mr. Warren to calculate Ms. Gabriel’s BAC had she consumed 3 ounces each of whiskey and Black Fly within 15 minutes of driving and her projected BAC dropped even further to between 43 and 94 milligrams of alcohol in 100 millilitres of blood.
[39] Mr. Warren’s opinion was that at 50 milligrams or more of alcohol in 100 millilitres of blood, a driver’s cognitive faculties would be impaired. Specifically, divided attention, choice reaction time, judgment of speed and distance, risk assessment and vision would be impaired. Mr. Warren distinguished impairment from the outward physical and observable effects of alcohol, making the point that someone who is impaired would not necessarily exhibit any outward physical signs. It was Mr. Warren’s opinion that someone with a blood alcohol concentration of 73 milligrams of alcohol in 100 millilitres of blood would definitely be impaired. In cross-examination, he indicated that impairment could start as low as 15 milligrams of alcohol in 100 millilitres of blood.
Injuries and Death
[40] The ATV accident left Ms. Shedrick with significant injuries. It is undisputed that Ms. Shedrick suffered multiple serious injuries. She sustained compression fractures to her spine at T4 – T8, she fractured her right wrist, her right knee, her elbow and her collarbone. She underwent three surgeries, two on her wrist and one on her collar bone. She was in the hospital for two weeks following which she was sent home in a wheelchair until sometime in October 2018. Her evidence is that her wrist has never fully recovered. With defence counsel’s consent, medical reports were made exhibits without requiring a medical practitioner to testify. Those medical reports confirmed her injuries.
[41] Jasmine Saunders suffered a serious traumatic brain injury in the accident. She died on October 28, 2018 of sepsis resulting from her brain injury. Dr. Christopher Milroy was qualified as a forensic pathologist and reviewed Ms. Saunders’ extensive medical records from both the Civic Hospital and the Brockville Hospital. His review gave rise to his opinion that Ms. Saunders suffered such extensive trauma to her brain that she was left in a persistent vegetative state, unable to cough, clear her bladder or bowels and unable to fight infection. Dr. Milroy testified that sepsis is common in patients with a traumatic brain injury because of the body’s inability to fight infection. Ms. Saunders’ medical team at the Civic Hospital tried to do a decompression on her brain by removing part of her skull to alleviate swelling, but her head injury was too extensive to be corrected. Dr. Milroy’s opinion was that Ms. Saunders’ head injury was the ultimate cause of her death. Had she not suffered the brain injury, she would not have developed sepsis which led to her death.
Analysis
Basic Principles
[42] Ms. Gabriel is presumed innocent. That presumption remains with her until the conclusion of this court’s deliberation. The Crown’s burden is to prove through the evidence that Ms. Gabriel committed the offences of which she is charged, beyond a reasonable doubt. That burden never shifts to the accused.
[43] Sections 253 and 255(2.1) and 255 (3.1) of the Criminal Code, R.S.C. 1985, c. C-46, have been repealed, but nonetheless govern the law regarding the operation of a motor vehicle while having a blood alcohol concentration exceeding 80 milligrams of alcohol in 100 millilitres of blood at the time this accident took place. Those sections set out the following:
253 (1) Every one commits an offence who operates a motor vehicle or vessel or operates or assists in the operation of an aircraft or of railway equipment or has the care or control of a motor vehicle, vessel, aircraft or railway equipment, whether it is in motion or not,
(b) having consumed alcohol in such a quantity that the concentration in the person’s blood exceeds eighty milligrams of alcohol in one hundred millilitres of blood.
Blood concentration equal to or over legal limit — bodily harm
255 (2.1) Everyone who, while committing an offence under paragraph 253(1)(b) or (3)(a) or (c), causes an accident resulting in bodily harm to another person is guilty of an indictable offence and is liable to imprisonment for a term of not more than 10 years.
Blood concentration equal to or over legal limit — death
255 (3.1) Everyone who, while committing an offence under paragraph 253(1)(b) or (3)(a) or (c), causes an accident resulting in the death of another person is guilty of an indictable offence and is liable to imprisonment for life.
[44] At the end of the trial, given the evidence that Ms. Gabriel had two drinks of whiskey and probably two drinks of Black Fly cooler within 10 minutes before driving, the Crown conceded that Ms. Gabriel should be acquitted of those charges as her blood alcohol concentration, assuming she consumed those quantities of alcohol, would have been between 73 and 124 milligrams of alcohol per 100 millilitres of blood. Having reviewed R. v. Roberts, 2018 ONCA 411, 360 C.C.C. (3d) 444, I agree that this evidence raises reasonable doubt and Ms. Gabriel is acquitted of those charges.
Impaired Driving Causing Bodily Harm and Death
[45] Turning next to the charges of impaired driving causing bodily harm and impaired driving causing death, I must determine whether Ms. Gabriel operated her ATV while she was impaired by alcohol and, if so, whether her manner of operating the ATV caused serious injury to Ms. Shedrick and caused the death of Ms. Saunders.
[46] Sections 253.1 and 255(2.1) of the Criminal Code have been repealed but govern the laws of impaired driving at the time of the offence. Those sections read as follows:
253 (1) Every one commits an offence who operates a motor vehicle or vessel or operates or assists in the operation of an aircraft or of railway equipment or has the care or control of a motor vehicle, vessel, aircraft or railway equipment, whether it is in motion or not,
(a) while the person’s ability to operate the vehicle, vessel, aircraft or railway equipment is impaired by alcohol or a drug;
Impaired driving causing bodily harm
255(2) Everyone who commits an offence under paragraph 253(1)(a) and causes bodily harm to another person as a result is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years.
Impaired driving causing death
255(3) Everyone who commits an offence under paragraph 253(1)(a) and causes the death of another person as a result is guilty of an indictable offence and liable to imprisonment for life.
Was Ms. Gabriel the Driver of the ATV?
[47] I am satisfied beyond a reasonable doubt that Ms. Gabriel was in fact the driver of the ATV at the time of the accident. I accept Ms. Shedrick’s uncontroverted evidence that Ms. Gabriel was the driver. I found Ms. Shedrick to be credible and reliable. Ms. Shedrick testified in a forthright manner, and when she did not know something or was not sure, she said so. She admitted to being somewhat intoxicated the night of the party but had a good recollection of what happened and much of her testimony was supported by other witnesses, videos and photographs. Her evidence that Ms. Gabriel was driving was supported by Derek Johnson, Zach B. and Zach K., all of whom testified they saw Ms. Gabriel driving her ATV when the trio left the yard. In addition, Ms. Gabriel told firefighter Paulino she was the driver of the ATV before saying she wasn’t sure. She also disclosed that she was the driver to Ms. Plamondon, a paramedic at the scene. On the evidence before me, I have no doubt Ms. Gabriel was the operator of the ATV.
Impairment
[48] Was Ms. Gabriel impaired by alcohol?
[49] The defence argues this court can infer Ms. Gabriel had had 6 oz of whiskey and three sips of alcoholic cooler 15 minutes prior to the accident. Defence counsel contends that such bolus drinking would put Ms. Gabriel’s projected blood alcohol level at 43 milligrams of alcohol in 100 millilitres of blood. The defence argues that this blood alcohol concentration together with the absence of outward signs of intoxication in Ms. Gabriel, raises a reasonable doubt as to whether Ms. Gabriel was impaired.
[50] R. v. Stellato (1993), 1993 CanLII 3375 (ON CA), 12 O.R. (3d) 90, requires only a finding of slight impairment in order to find someone guilty of impaired driving. I rely on the evidence of witnesses at the bonfire and on the testimony of Mr. Warren to conclude Ms. Gabriel was in fact impaired by alcohol at the time of driving. Between the time of her arrival at the party, at approximately 8:30 p.m., and approximately 10:35 p.m. when Ms. Gabriel, her sister Paige, Ms. Shedrick, Ms. Saunders and Ms. Daoust went to Spencerville to purchase more alcohol. Ms. Shedrick, Ms. Daoust and other party-goers observed Ms. Gabriel drinking from a bottle of whiskey she had in her hand all evening. Ms. Shedrick also observed her chasing the whiskey with sips of cooler. Her evidence as well as the evidence of Ms. Daoust was that Ms. Gabriel brought the bottle of whiskey and cooler in the car when the group of young women went to Spencerville for more alcohol and both Ms. Shedrick and Ms. Daoust observed Ms. Gabriel drinking on the way there and on the way back. Neither Ms. Shedrick nor Ms. Daoust could say how many drinks Ms. Gabriel had on the way to Spencerville or on the way back, but Ms. Shedrick estimated that prior to the trip to Spencerville, Ms. Gabriel had had four or five drinks, plus whatever had been consumed in the car. Ms. Shedrick could not quantify the amount of whiskey Ms. Gabriel consumed between the time they returned from Spencerville and the departure of the ATV, but she agreed Ms. Gabriel had two shots of whiskey with some of the Black Fly cooler. Her evidence was that Ms. Gabriel was drunk. She based her view on Ms. Gabriel’s behaviour, which she testified was not her normal behaviour. Ms. Shedrick had known Ms. Gabriel since high school and stated Ms. Gabriel was not normally outgoing and bubbly.
[51] Ms. Daoust, who arrived at the party at approximately 8:00 p.m., testified that she, Ms. Gabriel and Ms. Saunders shared the 26 ounces of whiskey from the time they arrived. She observed Ms. Gabriel drinking whiskey throughout the evening and her evidence was that Ms. Gabriel continued to drink in the car on the way to Spencerville to buy more alcohol. Her evidence was that she and Ms. Gabriel had consumed approximately equal amounts of alcohol and she (Ms. Daoust) was very intoxicated and would have been in no position to drive. She said she was so drunk she could only recall bits and pieces of the latter part of the night. Zach B. observed Ms. Gabriel drinking from the bottle of whiskey but did not count her drinks. He confirmed that Ms. Daoust was very drunk.
[52] Zach K., a friend of Ms. Gabriel’s, testified Ms. Gabriel, Ms. Shedrick, Ms. Saunders and Ms. Daoust were all visibly intoxicated when they returned from Spencerville. His evidence was Ms. Gabriel was unusually and uncomfortably affectionate toward him when she returned from Spencerville and offered him a drink. He noted she was slurring. He explained to the court that Ms. Gabriel’s affectionate behaviour was out of character as they did not have that kind of relationship. His evidence was that he observed Ms. Gabriel take two sips out of the bottle of whiskey upon her return from Spencerville.
[53] Dillen Johnson’s impression was that Ms. Gabriel was buzzed as she was acting silly, giggling, joking around and having fun. In cross-examination, he conceded Ms. Gabriel could have been drunk or sober; he had not been monitoring her alcohol consumption and he was pretty drunk himself.
[54] Ms. Gabriel herself told firefighter Christopher Paulino and paramedic Jenny Plamondon that she had consumed alcohol. She did not tell them what she had consumed, or when. She also she told paramedic Kurtis Holmes she had consumed whiskey and wine and she told nurse Brittany Coleman that she had had whiskey and beer. Again, she did not specify how much or when. Firefighter Trevor Riopelle smelled alcohol on Ms. Gabriel’s breath as did Mr. Holmes, Constable Prieur and Constable Francis.
[55] All of the witnesses who testified were credible in my view. They all delivered their evidence in a forthright manner. The party-goers who testified admitted they did not count the number of drinks Ms. Gabriel had and they admitted to being intoxicated by the end of the evening. I found all witnesses’ evidence to be reliable, except for a portion of Ms. Daoust’s evidence due to her level of intoxication. I found Ms. Daoust credible however. She readily admitted to being very intoxicated and she also admitted she had no recollection of stopping for gas on the way back to Ms. Gabriel’s home from Spencerville as she was so intoxicated that she had passed out. She recalled stopping at the railroad tracks to dance but had no recollection as to whether a train had gone by. She admitted to blanks in her memory and uncertainty as to the timing of certain events. Her evidence as to the timing and details of certain events was in fact inconsistent with the evidence of a number of witnesses, in particular Ms. Shedrick’s. Examples of these inconsistencies include when the drinking in the kitchen took place, when the photos of the girls drinking in front of a mirror took place, and whether Ms. Gabriel, Ms. Shedrick and Ms. Saunders went into the house following the trip to Spencerville. I accept Ms. Daoust’s evidence as to the fact that mostly she, Ms. Gabriel and Ms. Saunders drank from the whiskey bottle prior to the trip to Spencerville and I also accept her evidence that she, Ms. Saunders and Ms. Gabriel continued to share the whiskey on the way to Spencerville. She recalled that Ms. Gabriel’s sister drove to Spencerville with Ms. Shedrick in the front seat while she, Ms. Gabriel and Ms. Saunders were in the back. This evidence as to the drinking in the vehicle is also consistent with Ms. Shedrick’s and is corroborated by the video of the “Kiki dance” in which Ms. Gabriel is seen with the whiskey bottle in her hand. I do not accept the balance of Ms. Daoust’s evidence as to the timing of other events which took place that evening as it was inconsistent with most of the evidence of other witnesses. I also reject Ms. Daoust’s evidence that she could assess Ms. Gabriel’s level of intoxication when she drove the ATV as Ms. Daoust was so intoxicated at that point that she was passed out in the house.
[56] I accept Ms. Shedrick’s evidence in its entirety. As I indicated, I found her to be credible and I found her evidence to be reliable. Her observations of Ms. Gabriel’s drinking from the whiskey bottle throughout the night and her evidence regarding Ms. Gabriel’s behaviour was consistent with the evidence of others.
[57] While there was evidence Ms. Gabriel consumed two sips of whiskey with the possibility of two sips of Black Fly cooler upon her return from Spencerville, she was not observed drinking in the video at the train tracks doing the “Kiki dance” at 11:27 p.m., and any alcohol that she would have consumed before that time would not fall within the time frame for “bolus drinking” to impact her blood alcohol level at the time she drove. There was no evidence Ms. Gabriel consumed 6 drinks upon her return from Spencerville (three shots of whiskey, three sips of Black Fly) and I reject defence counsel’s suggestion that I can infer that she in fact consumed that quantity of alcohol. There is no basis for it.
[58] An important consideration in the evidence is that Ms. Gabriel was not observed by paramedics, firefighters or police to be showing outward signs of intoxication. While this is true, they did not observe her walking or standing and Mr. Warren’s evidence was that the absence of such signs does not necessarily mean Ms. Gabriel was not impaired.
[59] Mr. Warren’s evidence was that the average person’s alcohol elimination rate is between 10 and 20 milligrams of alcohol per hour. His evidence was that an ounce of whiskey and an ounce of Black Fly would amount to 30 milligrams of alcohol. Accepting Ms. Shedrick’s evidence that Ms. Gabriel had four or five drinks in the two-hour period before going to Spencerville, I am satisfied that the alcohol she consumed exceeded the average elimination rate for that two-hour period. The evidence is that she continued to drink from the whiskey bottle on the way to Spencerville and back. I am satisfied she had more than one drink in this time period. This evidence, combined with the evidence of Ms. Gabriel’s ebullient and uninhibited behaviour, including her unusual display of affection towards Zach K. who testified she had slurred speech upon her return from Spencerville, leaves me with no doubt Ms. Gabriel was impaired when she drove the ATV. I am satisfied that Ms. Gabriel’s blood alcohol concentration when she decided to get on the ATV was at least 73 milligrams /100 millilitres. Her decision to take her ATV for a ride further solidifies my conclusion. Ms. Gabriel, having just consumed four drinks, decided to take passengers, one of whom was not wearing a helmet, on an ATV not meant for passengers. This, in my view, is evidence of impaired judgment.
Causation
[60] In order to convict Ms. Gabriel of impaired driving causing bodily harm and causing death, I must be satisfied that her manner of driving was a contributing cause and not just a minimal or insignificant cause of the accident: R. v. Smithers, 1977 CanLII 7 (SCC), [1978] 1 S.C.R. 506; R. v. Andrew (1994), 1994 CanLII 3288 (BC CA), 91 C.C.C. (3d) 97 (B.C. CA.), at paras. 52-53. It is clear from Andrew that causation is not established where there is evidence of impaired driving but there is no evidence of poor driving.
[61] A single vehicle accident is not necessarily evidence of impairment. Defence counsel argues there was no evidence of bad driving, which would be common in impaired driving situations. He argues there was no evidence of weaving and in fact, Ms. Gabriel’s trajectory was in a relatively straight line. He also argues that the ATV was being driven off-road, which is what it was meant to do. He contends that because Ms. Gabriel was driving in a ditch, the direction of traffic was irrelevant. The defence argues that the accident could just as easily have happened to a sober driver. I disagree. Even if I accepted that Ms. Gabriel’s travel in a direction opposite to traffic was irrelevant, the evidence is that she drove at what Ms. Shedrick felt was an excessive rate of speed, leading her and Ms. Saunders to yell at her to slow down. While she stopped and turned around eventually, she sped up again, prompting Ms. Shedrick to yell at her again to slow down. Her manner of driving scared Ms. Shedrick. She ended up driving into a ditch either accidentally or purposely. It was dark, the ditch was full of tall grass making it difficult, if not impossible, to see and navigate obstructions or changes in terrain and to react appropriately to such changes. Despite this, Ms. Gabriel drove at a speed of at least 30 kilometers per hour, a speed sufficient to launch her ATV from the ground at a 14 degree angle when she encountered an incline, leading her to strike an open gate. There is a question as to whether Ms. Gabriel attempted evasive action. Mr. Foster’s opinion was that if she did, it was taken far too late.
[62] Had Ms. Gabriel driven on the right side of the road, the accident would not have happened. Had she been driving in the ditch at a much slower speed, she could have applied her brakes upon encountering the incline and avoided striking the open gate. In my view, Ms. Gabriel’s driving showed her judgment and her ability to judge speed and distance were impaired and also showed an impairment of her ability to react to change. Taking the totality of the evidence into consideration, I am satisfied beyond a reasonable doubt that Ms. Gabriel was impaired by alcohol while driving her ATV. This impairment led to poor decisions and poor driving, which caused her to have the accident resulting in the serious injury of Ms. Shedrick and the death of Ms. Saunders. She is therefore guilty of impaired driving causing bodily harm and impaired driving causing death.
Criminal Negligence Causing Bodily Harm and Criminal Negligence Causing Death
[63] Having found Ms. Gabriel guilty of impaired driving causing bodily harm and impaired driving causing death, I now turn to whether her actions amounted to either criminal negligence causing death and criminal negligence causing bodily harm or the lesser and included offence of dangerous driving causing death and dangerous driving causing bodily harm or neither. The difference between the two criminal charges is a difference in the degree to which an accused’s conduct departs from the standard of a reasonable person’s conduct in similar circumstances.
[64] Criminal negligence causing death is defined in ss. 219 and 220 of the Criminal Code.
219 (1) Every one is criminally negligent who
(a) in doing anything or,
(b) in omitting to do anything that it is his duty to do,
shows wanton or reckless disregard for the lives or safety of other persons.
(2) For the purposes of this section, duty means a duty imposed by law.
220 Every person who by criminal negligence causes death to another person is guilty of an indictable offence and liable
(a) where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years; and in any other case, to imprisonment for life.
[65] Criminal negligence causing bodily harm is defined in section 221 of the Criminal Code as follows:
221 Every person who by criminal negligence causes bodily harm to another person is guilty of
(a) an indictable offence and liable to imprisonment for a term of not more than 10 years; or
(b) an offence punishable on summary conviction
[66] The test for criminal negligence causing death has most recently been interpreted in R. v. Javanmardi, 2019 SCC 54. It requires a finding that a person’s act or omission amounts to a marked and significant departure from a standard of reasonableness. At paragraphs 19-21, the Supreme Court set out the elements of the offence 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., 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.).
[67] The lesser and included offence of dangerous driving causing death, as defined in ss. 249(1) and (4) of the Criminal Code at the time of the offence, was as follows:
249 (1) Every one commits an offence who operates
(a) a motor vehicle in a manner that is dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place;
(4) Every one who commits an offence under subsection (1) and thereby causes the death of any other person is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.
[68] This offence has since been repealed and replaced with dangerous operation causing death, pursuant to ss. 320.13 of the Criminal Code, which was not yet in force on the date of the accused’s conduct. As such, my analysis is based upon the repealed section.
[69] As set out in R. v. Roy, 2012 SCC 26, [2012] 2 S.C.R. 60, at para. 28 and R. v. Beatty, 2008 SCC 5, [2008] 1 S.C.R. 49, at para. 29, in order to find an accused person guilty of dangerous driving causing death, a court must be satisfied that the accused person’s driving was a marked departure from the standard of care that a reasonable person would exercise in the accused’s circumstances.
[70] To justify criminal liability, I would have to find that Ms. Gabriel’s driving was either a marked departure, in the case of dangerous driving, or a marked and significant departure, in the case of criminal negligence, from the standard of care a reasonable person would exercise in circumstances similar to that of the accused. If I find Ms. Gabriel’s driving was a mere departure from that standard of care, that would not meet the threshold for criminal liability.
[71] In applying the tests above, the court must be satisfied that the evidence as to the actus reus (manner of driving) and the mens rea (the driver’s mental state) meets one of the tests for criminal liability.
[72] The actus reus is whether the act and manner of driving breached a legal duty imposed by law. In examining whether the evidence meets this threshold, the consequences of the driving should not be a consideration: R. v. Tabanao, 2020 ONSC 3501; see R. v. Beatty, 2008 SCC 5, [2008] 1 S.C.R. 49, at para. 46 and R. v. Roy, 2012 SCC 26, [2012] 2 S.C.R. 60, at paras. 34-35.
[73] The mens rea or fault element requires this court to examine whether Ms. Gabriel’s actions were a significant and marked departure from the standard of a reasonable person in similar circumstances to Ms. Gabriel.
[74] On the evidence before me, I find that Ms. Gabriel’s act and manner of driving meet the requirements of the actus reus based on the following facts:
a) She took two passengers on her ATV, a vehicle not meant to accommodate passengers;
b) She permitted one of her passengers on the vehicle without a helmet;
c) She drove at night on a roadway which prohibited ATVs;
d) She drove impaired by alcohol; and
e) The act and manner of driving lead to the roll-over of the ATV.
[75] Did Ms. Gabriel’s actions amount to a wanton and reckless disregard for her passengers? Were her actions either a marked or significant and marked departure from the standard of a similarly situated reasonable person or were her actions merely a departure from that standard.
[76] I find that a reasonable person in Ms. Gabriel’s circumstances would not have taken her ATV out at all, let alone with passengers. Two of the party-goers testified that they tried to stop Ms. Gabriel from leaving the property because they thought driving was a bad idea, given the drinking that had taken place throughout the evening. Ms. Gabriel knew she had been drinking throughout the evening, she knew she had just consumed two shots of whiskey and two sips of cooler before she left the property: she left the property anyway. I am satisfied she knew or ought to have known her ATV was not meant for passengers as this was clearly marked by the sticker on the ATV and was well indicated in the owner’s manual, yet she took two passengers on the vehicle. She knew anyone on the ATV was required to be wearing a helmet, yet she permitted Ms. Saunders on the vehicle without a helmet. She is presumed to have known she was not allowed on that roadway with her ATV and to have known that even if ATVs were permitted on that area of the roadway, they were not permitted to be out after 10:00 p.m. Knowing all these things, Ms. Gabriel travelled on the roadway at what Ms. Shedrick felt was an excessive rate of speed. She was scared. She and Ms. Saunders yelled at Ms. Gabriel to slow down. When she eventually slowed down and stopped, Ms. Gabriel expressed annoyance and not concern that her passengers felt she was going too fast. When she turned around, rather than drive at a slow rate of speed which was comfortable for her passengers, she again drove at what Ms. Shedrick felt was an excessive rate of speed and she ultimately drove off the roadway on the opposite side of the road to traffic. She drove into a ditch obstructed with tall grass. The grass would have impaired her ability to properly see in front of her to negotiate changes in terrain, yet she drove at a rate of speed sufficient to launch her ATV airborne when she encountered an incline. A reasonable person would have slowed down considerably or stopped once in the ditch, but that did not happen. Instead, driving at some 30 kilometers per hour, in a ditch with an obstructed view, she failed to properly negotiate an incline in the terrain and struck an open gate she either did not see or which she saw but took evasive action far too late to avoid, leading the ATV to roll, tossing its occupants into the ditch.
[77] In my view, there is no question that Ms. Gabriel’s actions meet a standard of criminal liability. The question for this court is whether her actions amounted to a marked departure from the standard of a reasonable person or a whether her actions meet the high threshold of a significant and marked departure. While most criminal negligence causing death driving cases involve higher rates of speed, when I consider the series of negligent decisions made by Ms. Gabriel, I am led to conclude her actions were a marked and significant departure from a standard of reasonableness, not unlike the accused in R. v. Gogo (2000), 6 M.V.R. (4th) 38 (Ont. C.A.). In that case, the accused had been drinking at a campsite and decided to ride a dirt bike, taking a passenger with him. Neither the accused nor the passenger was wearing a helmet. They hit a stalled ATV in front of them and the passenger on the dirt bike died of head injuries sustained in the accident. The accused was found guilty by a jury of criminal negligence causing death. Ms. Gabriel made a series of negligent decisions which led to the serious injury of Ms. Shedrick and the death of Ms. Saunders. I find the cumulation of those decisions to be a marked and significant departure from the conduct of a reasonable person in the accused’s circumstances, I therefore find Ms. Gabriel guilty of criminal negligence.
[78] In conclusion, taking the totality of the evidence into consideration, I find Ms. Gabriel guilty of criminal negligence causing bodily harm, criminal negligence causing death and impaired driving causing bodily harm and impaired driving causing death.
The Honourable Justice Nathalie Champagne
Released: November 20, 2020
COURT FILE NO.: 19-108
DATE: 20201120
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
Montana Gabriel
amended REASONS FOR JUDGMENT
The Honourable Justice Nathalie Champagne
Released: November 20, 2020