COURT FILE NO.: CR-17-1687
DATE: 2021/04/23
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
JAMIL AHMAD QURESHI
Accused
Claudette Breault, for the Crown
Mash Frouhar, for the Accused
HEARD: March 2, 3, 4, 5, 6, 10, 11, 2020 at Brockville, ON As a result of the suspension of Court operations effective March 17, 2020 due the Covid-19 pandemic, the matter was adjourned to July 21, 22, August 4, 5, 6, 7, September 1, 2020 via Zoom February 8, 9, 2021 at Brockville, ON with Accused attending via Zoom February 10, 11, 12, 16, 17, 18, and 19, 2021 via Zoom March 11, 12, 15, 18, 22, 23 and 26, 2021 via Zoom
ON CONSENT OF THE CROWN AND DEFENCE, THIS DECISION IS BEING READ ORALLY BY VIDEOCONFERENCE WITH COUNSEL AND MR. QURESHI AND INTERESTED MEMBERS OF THE PUBLIC PRESENT. THE REASONS WILL BE ISSUED IN WRITING.
TRIAL DECISION
Overview
General Comments
Brief Background
General Legal Principles
Elements of the Charges
Findings
Position of the Crown
Position of the Defence
Actus Reus Analysis
Introduction
Findings
Road conditions
Mechanical conditions
Traffic conditions
Conclusion
Mens Rea Analysis
Introduction
Mr. Qureshi’s Statement
Introduction
Defence position
Circumstances
The Interview
Discussion
Constable Andrew Jocko’s evidence regarding the logs
Introduction
Constable Jocko’s evidence
Ronald J. Vandeursen
Fatigue Discussion
Michael Pierson
Expert’s Duty to the Court
Constable J. Chris Prent
Defence Position
Discussion
Experts in collision reconstruction
Constable Jason Foster
The Defence expert’s criticisms of the Foster Report
Defence evidence
Defence Expert Dalton Brown
Crown’s Position
Defence Position
Conclusions regarding Mr. Brown’s opinion evidence
Mens Rea Conclusion
Mr. Qureshi’s statements
Overview
[1] This case involves a tragic multi-vehicle collision which occurred on Highway 401 a few years ago near the exit to Prescott. This collision resulted in the deaths of two individuals and injuries to three other individuals.
[2] Over the 30 days of trial in this matter, this Court heard from many witnesses who observed the collision and various experts who provided opinions regarding different aspects of the collision.
[3] Given the volume of this evidence, this decision is lengthy. The purpose of this decision is to determine whether the Crown has proven beyond a reasonable doubt that Mr. Qureshi is guilty of the charges he is facing.
[4] The accused, Jamil Ahmad Qureshi, is charged that he did operate a motor vehicle in a manner that was dangerous to the public thereby causing the deaths of John Keeler and Tiffany Keeler pursuant to s. 249(4) of the Criminal Code, R.S.C. 1985, c. C-46 (“Code”), which is alleged to have occurred on November 27, 2017 on Highway 401 in the Township of Edwardsburgh.
[5] Mr. Qureshi is also charged that he did operate a motor vehicle in a manner that was dangerous to the public causing bodily harm to Lori Kay, Laura Kirby and Robin Riga contrary to s. 249(3) of the Code which is alleged to have occurred on the same day and same location as above.
[6] The trial proceeded in English with an Urdu interpreter and certain witnesses testified in French with a translator. Due to the pandemic, this trial was interrupted as a result of the suspension of court services. On consent, the latter part of the trial was held via videoconferencing.
[7] The Court acknowledges its appreciation to all the stakeholders in this matter who ensured that this trial was completed in a fair and timely matter. This includes court staff, counsel, the interpreters and all witnesses involved in this matter.
General Comments
[8] Driving is an inherently dangerous activity. Accidents caused by these activities can result in criminal convictions if the driving meets the criteria under the Code and the case law.
[9] A motor vehicle collision of this magnitude which results in the tragic loss of lives and serious injuries to individuals impacts those involved in the collision and those who knew these individuals.
[10] In this case, Mr. Keeler and Ms. Keeler’s untimely deaths have brought terrible sorrow to those close to the Keelers. Ms. Kay, Ms. Kirby and Ms. Riga’s serious injuries have also impacted them and others close to them.
[11] This collision has also touched many individuals in this community, including the witnesses and first responders.
[12] The Court acknowledges these losses and expresses sympathy as sudden deaths and serious injuries can cause so much pain to so many people.
[13] However, these sentiments of sympathy and acknowledgement of the pain resulting to those involved in this collision do not play a role in my decision today.
[14] The Court’s focus is on the five charges of dangerous driving causing death and bodily injury that were laid against Mr. Qureshi.
[15] As stated by Paciocco J.A. in R. v. Romano, 2017 ONCA 837, 41 C.R. (7th) 305, the proper question is whether the manner of Mr. Qureshi’s driving was dangerous to the public and was a marked departure from the required standard in the circumstances. In the second appeal found at R. v. Romano, 2021 ONCA 211, at para. 34, the Court confirmed that “A consequence can verify the nature of the risks but should not be used in determining whether the manner of driving was dangerous or in marked departure from the norm”. That is, the trier of fact cannot leap to a conclusion about the manner of driving based on the consequences.
[16] This trial is about whether the Crown can prove beyond a reasonable doubt that Mr. Qureshi committed these offences.
[17] The Court’s task is to apply the law as set out in the Code and in accordance with the directions of higher courts. This is a criminal trial, not a civil trial. Different criteria are engaged.
[18] Charges of dangerous driving turn on their facts.
[19] In this decision, the Court will discuss the following:
Brief background;
The general legal principles involved in criminal cases;
What elements the Crown must prove beyond a reasonable doubt on charges of dangerous driving; and
My analysis of the evidence, my findings and my conclusions.
Brief Background
[20] On the evening of November 27, 2017, in the westbound lanes on Highway 401 at kilometre 716 and approximately two kilometres from the exit to Prescott, an emergency crew was in the recovery stage as a result of a motor vehicle collision between two tractor trailers (“westbound collision recovery”). The collision had occurred late that afternoon and the westbound lanes in that vicinity were closed.
[21] At this location, Highway 401 is a four-lane highway comprised of two eastbound lanes and two westbound lanes separated by a cement median four feet in height (this cement median is known as a “jersey wall”). The posted maximum speed limit is 100 km/hour. There was a guide rail along the south side of the highway.
[22] The highway is straight and flat in the vicinity. On that night, it was clear and there was no precipitation.
[23] There were six vehicles in the westbound lanes attending to the westbound collision recovery: a police cruiser, two tractor trailers, a tow truck, a pick-up truck and a fire truck.
[24] In front of the police cruiser were the two tractor trailers involved in the collision. The fuel of one of the tractor trailers was being pumped out. Also in front of the police cruiser was a tow truck and a fire truck. Those involved in this westbound collision recovery had the benefit of lighting to assist them.
[25] John R. Van Dusen and his son John W. Van Dusen were in a pick-up truck waiting to assist in the westbound collision recovery once the refuelling of the tractor trailer had been completed. Sergeant Brendan Mullen of the Ontario Provincial Police (“OPP”) was in his cruiser behind the vehicles attending to the westbound collision recovery. Firefighters were also at the scene.
[26] At approximately 10:27 p.m., a tractor trailer (“first tractor trailer”) was heading eastbound in the right slow lane (“right lane”). This first tractor trailer was slowing down in the vicinity of the westbound collision recovery and there is some evidence that it may have in fact come to a stop. There is conflicting evidence as to whether this first tractor trailer had its four-way flashers on. A second tractor trailer (“the International”) was slowing down behind the first tractor trailer and there is evidence that the International had its four-way flashers on.
[27] The three vehicles, a Chevrolet Aveo (“Chevrolet”), a Honda Odyssey (“Honda”) and a Dodge Dakota pick-up truck (“Dodge”), were directly behind the International, in that order, in the right lane. They had slowed down and/or come to a stop behind the International. All five vehicles were travelling in the right lane. There is some evidence that there were other vehicles that had passed these vehicles in the passing lane.
[28] Behind these five vehicles in the right lane was the Volvo tractor trailer driven by Mr. Qureshi (“Volvo”).
[29] The Crown and Defence collision reconstruction experts differ on the exact dynamics of the collisions that ensued. When I refer to collision dynamics, I mean the travel paths of the vehicles during the collision.
[30] At this point, suffice to say that the Volvo hit the Dodge and together this Volvo/Dodge combination hit the Honda. There was a counter clockwise rotation of the Dodge and the Honda. The rear of the Chevrolet was hit by the Honda, and the Chevrolet rotated clockwise. Other collisions occurred between the vehicles until the involved vehicles came to their various resting spots on the eastbound section of Highway 401 at kilometre 718.
[31] The Dodge ignited into a fireball and burned, causing the deaths of the driver, Mr. Keeler, and the passenger, Ms. Keeler.
[32] Ms. Kay, in the Honda, and Ms. Kirby and Ms. Riga, in the Chevrolet, sustained injuries.
[33] There was no evidence of drug or alcohol consumption by Mr. Qureshi.
[34] There were no noted obstructions in the interiors of the involved vehicles.
[35] On consent, the Crown and Defence admitted the following exhibits as evidence:
Photos taken of the collision scene, Exhibit 1A and Exhibit 1B (3 DVDs);
La preuve de témoin (evidence of witness) – summary of eight witnesses’ evidence; and
Post-mortem reports for Ms. Keeler and Mr. Keeler.
General Legal Principles
[36] Firstly, a fundamental principle in criminal law is that every person charged with an offence is presumed innocent until the Crown has proven his or her guilt beyond a reasonable doubt.
[37] Secondly, the burden of proof rests with the Crown to prove each essential element of an offence beyond a reasonable doubt. Mr. Qureshi need not prove his innocence.
[38] Thirdly, a reasonable doubt is not a farfetched or frivolous doubt. It is not a doubt based on sympathy or prejudice. It is a doubt based on reason and common sense. It is a doubt that logically arises from the evidence, or the lack of evidence.
[39] It is nearly impossible to prove anything with absolute certainty. Crown counsel is not required to do so. Absolute certainty is a standard of proof that is impossibly high. Proof beyond a reasonable doubt falls much closer to absolute certainty than to proof of probable or likely guilt.
Elements of the Charges
[40] An offence generally has two essential ingredients: (1) a voluntary act or omission (actus reus), accompanied by (2) a certain state of mind (mens rea).
[41] At para. 43 of R. v. Beatty, 2008 SCC 5, [2008] 1 S.C.R. 49, the Supreme Court of Canada set out the two-pronged legal test to establish dangerous driving:
(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 [in the Code], 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.
[42] At para. 40, the Court stated:
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. [Emphasis in original.]
[43] With respect to the actus reus, the court must focus on the actual manner in which the motor vehicle was driven, taking into consideration all the circumstances and not the consequences of the driving: R. v. Roy, 2012 SCC 26, [2012] 2 S.C.R. 60, at paras. 34-35.
[44] The case law has explored and applied the meaning of mens rea or the fault element of the offence. The trier of fact must identify the “how and in what way” the accused’s driving went beyond carelessness and reached the level of a marked departure from the standard of care a reasonable person would show in the same position: see Roy, at para. 30; R. v. Reynolds, 2013 ONCA 433, 309 O.A.C. 14, at paras. 18-19.
[45] At para. 48 of Beatty, the Supreme Court of Canada said that the presence of an objective mens rea is determined by assessing the dangerous conduct as against the standard expected of a reasonably prudent driver. If the dangerous conduct constitutes a marked departure from the norm, the offence will be made out. What constitutes a marked departure from the standard of what is expected of a reasonably prudent driver is a matter of degree.
[46] Dangerous driving is a form of negligent conduct. However, negligent driving will not necessarily constitute the offence of dangerous driving. As Charron J. of the Supreme Court of Canada stated in Beatty, there is a distinction between civil negligence and negligence in criminal cases: at paras. 6-8. Dangerous driving is penal negligence.
[47] The lack of care must be serious enough to merit punishment. In R. v. Willock (2006), 2006 CanLII 20679 (ON CA), 210 C.C.C. (3d) 60 (Ont. C.A.), at para. 31, Doherty J.A. noted that although a brief moment of carelessness or inattention is more suggestive of the civil rather than the criminal end of the negligence continuum, it can amount to a marked departure from the standard of a reasonable person. Indeed, the Supreme Court of Canada in Beatty held that a court could find a marked departure from the standard of a reasonable person in a few seconds of conduct: at para. 48.
[48] As stated in R. v. Ibrahim, 2019 ONCA 631, 147 O.R. (3d) 272, and R. v. Hundal, 1993 CanLII 120 (SCC), [1993] 1 S.C.R. 867, the mens rea is a modified objective test. It is not a momentary inattention or carelessness. At para. 23 of Ibrahim the Court referred to Cromwell J.’s decision in Roy, at para. 36:
It is helpful to approach the issue by asking two questions. The first is whether, in light of all the relevant evidence, a reasonable person would have foreseen the risk and taken steps to avoid it if possible. If so, the second question is whether the accused’s failure to foresee the risk and take steps to avoid it, if possible, was a marked departure from the standard of care expected of a reasonable person in the accused’s circumstances. [Emphasis in original.]
[49] The Court of Appeal in Ibrahim reiterated that the Court must not leap from the fact that there are tragic consequences of the driving, such as the death of an innocent person, to a conclusion about dangerousness: at para. 24. The Court in that case agreed with the trial judge’s emphasis that even good drivers may experience a momentary lapse of attention, and that such momentary inattention does not reach the level of a marked departure: see also Beatty, at para. 71, per McLachlin C.J.; Roy, at para. 37.
[50] In the recent Supreme Court of Canada decision of R. v. Chung, 2020 SCC 8, the Court reiterated that even momentary conduct could amount to a marked departure. In that case, the Supreme Court was critical of the trial judge who in acquitting Mr. Chung focussed on the momentary nature of the excessive speed. In that case, Mr. Chung had accelerated rapidly as he entered an intersection. At para. 21, the Supreme Court stated:
A brief period of rapidly changing lanes and accelerating towards an intersection is not comparable to momentary mistakes that may be made by any reasonable driver, like the mistimed turn on to a highway in Roy, the momentary loss of awareness in R. v. Beatty, 2008 SCC 5, [2008] 1 S.C.R. 49, or the sudden loss of control in Willock.
[51] In R. v. Grewal, [1991] B.C.J. No. 760 (C.A.), a conviction for dangerous driving causing bodily harm was upheld. That case involved the accused hitting a cyclist who was riding along the paved shoulder of the road. The Court took into account the fact that the cyclist was there to be seen and would have been visible for some distance before the collision site. It was not necessary for the trial judge to have been able to determine the reason the accused was not paying proper attention. Swerving onto the right shoulder twice in a short period of time was more than momentary inadvertence and was sufficient to constitute a marked departure from the norm.
Findings
[52] The driving must cause the death of another person or bodily harm. The evidence proves beyond a reasonable doubt that the collision caused by Mr. Qureshi resulted in two deaths and bodily injury to three individuals named in the indictment. Those elements of causing death and bodily harm have been proven by the Crown beyond a reasonable doubt.
Position of the Crown
[53] The Crown submits that the evidence indicates that Mr. Qureshi was driving in a manner dangerous to the public and that both the actus reus and mens rea have been proven beyond a reasonable doubt.
[54] The Crown’s theory is that Mr. Qureshi was driving a large transport truck on a major highway route with a speed limit of 100 km/hour where there were at least five vehicles ahead of him who had considerably decreased their speed or had come to a stop. These vehicles were visible due to their lights. In addition, the well-lit area of the westbound collision recovery was another visual cue.
[55] These circumstances require a motorist to drive in a prudent manner and his driving was a marked departure from the standard of care which a reasonable person would have exercised in the same circumstances.
[56] The Crown submits that Mr. Qureshi’s failure to take any steps when he observed the visual cues ahead of him is a marked departure and constitutes dangerous driving. She also submits that fatigue was a factor as Mr. Qureshi had been on the road for 32 hours without taking the appropriate rest breaks required by regulations governing tractor trailer drivers.
[57] Finally, she submits that the defence expert evidence alleging that Mr. Qureshi did not have the time and distance to stop his vehicle due to the circumstances that existed do not raise a reasonable doubt.
Position of the Defence
[58] The Defence submits that the Crown has not proven the elements of the offences.
[59] The Crown has not proven the actus reus. The case law requires some type of dangerous driving which is not apparent here. This element of dangerous driving could include speeding; not maintaining an appropriate distance between vehicles; changing lanes quickly; or any erratic driving. There was no evidence of this type of driving here.
[60] Mr. Qureshi was not driving dangerously as he was driving at approximately the speed limit and he could not have anticipated that the traffic ahead of him would come to almost a stop or at least to a snail’s pace.
[61] The Defence submits, among other things, the following:
The westbound collision recovery would not be a cue to Mr. Qureshi that drivers in the opposite lanes would actually be slowed down and/or stopped;
Up until the collision, the traffic was free-flowing and vehicles were in the passing lane overtaking vehicles in the right lane;
It was night time and visibility was reduced;
Brake lights and/or flashing lights ahead do not signal that there is an emergent hazard ahead; and
The Crown had not proven beyond a reasonable doubt that fatigue was a factor in this collision.
[62] With respect to the mental element of the offence, the collision occurred very quickly and this did not give Mr. Qureshi an opportunity to react to avoid the accident.
[63] The evidence of Mr. Dalton Brown, the Defence’s collision reconstruction expert, raises a reasonable doubt. In his opinion, Mr. Qureshi did not have the time and distance necessary to avoid the collision because Mr. Qureshi could only react to the visual cues when he understood that was ahead of him was an imminent hazard which required a driver response. There would also be a delay in a driver’s response, as he would need time to perceive the hazard and then react (which he called the Perception Reaction Time or “PRT”).
[64] The Court cannot use hindsight to say what Mr. Qureshi could have seen from his view point. No one took a photo from his viewpoint to see what was visible to him in the eastbound lanes that evening. Many of the Crown’s witnesses were in the westbound lanes from a completely different vantage point and, most importantly, they were in a static position. Mr. Qureshi was a distance from the group of vehicles travelling together and he needed time to determine if this group was an emergent hazard.
[65] In conclusion, the Defence submits that Mr. Qureshi’s driving was not a marked departure from the standard of care that a reasonably prudent driver would exercise in the circumstances. The charges should be dismissed.
Actus Reus Analysis
Introduction
[66] For the reasons that follow, I am satisfied beyond a reasonable doubt that the Crown has proven the actus reus element of the offences.
[67] I find that Mr. Qureshi 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”: Code, s. 249(1)(a).
[68] I find that Mr. Qureshi’s driving speed was excessive given the traffic flow ahead of him and that he should have been proceeding cautiously and at a slower pace. The vehicles ahead of him had significantly decreased their speed and he did not adjust accordingly. This is the case even if the speed limit at this section of Highway 401 is 100 km/hour and he was travelling at 104 km/hour.
[69] The witnesses do not agree on the speed of the vehicles but they do all agree that the traffic had slowed down or stopped.
[70] As I will explain below in more detail, I accept the evidence of the accident reconstructionist, Constable Foster, that Mr. Qureshi was travelling at a speed of “about 104 km/hr” just before he struck the Dodge and he was travelling considerably faster than the Dodge. I accept this expert’s evidence which is corroborated by the data taken from the Volvo engine control module (ECM).[^1]
[71] Both the Volvo’s speed and the lack of evasive measures taken by Mr. Qureshi to avoid the collision attracted the attention of several witnesses.
[72] This manner of driving in these circumstances constitutes a danger to the public.
Findings
Road conditions
[73] Firstly, the Court finds that the general conditions in the area of the collision that evening were clear and that the roadway was straight and relatively flat with a downhill grade of .35% (which is virtually flat).
[74] There were no weather conditions which would result in non-optimal driving conditions as it was a clear night with no precipitation. This was observed by Sergeant Mullen, John R. Van Dusen and John W. Van Dusen.
[75] Constable Foster, who was determined to be an expert in collision reconstruction, stated in his report that he arrived a few hours after the collision and noted that it was a clear night and that there was no precipitation.
[76] Constable Foster testified that based on his investigation, at the time of the collision:
The road surface was in good repair;
It was mainly a clear sky;
There was good visibility;
There was no precipitation;
It was -10.8 degrees Celsius;
There was snow on the ground but not on the road surface; and
The road surface was dry.
[77] The Defence expert, Mr. Brown, confirmed the weather through his research online at the website weatherunderground.com/history. He confirmed that the temperature was -10 degrees Celsius with an easterly wind of 8 km/hour and no noted visibility restrictions.
Mechanical conditions
[78] The involved tractor trailers were mechanically fit to be on the road as set out by Constable Brent Darraugh in his expert inspection report. Constable Darraugh, who was qualified as an expert in mechanics, examined the International and the Volvo and found that both vehicles were in proper working order at the time of the collision.
[79] With respect to the Volvo, he found:
There were no defects to the brakes;
The steering system was working properly; and
The tires were in good condition.
[80] Therefore, I find that the Volvo did not have any defects or mechanical issues that would affect Mr. Qureshi’s driving of the vehicle or contribute to the collision.
Traffic conditions
Introduction
[81] As set out below, the witnesses describe the slowing down and/or stopping of the involved vehicles in the eastbound lanes in the vicinity of the westbound collision recovery.
[82] Some witnesses testified that “rubbernecking” was occurring, i.e., the drivers in the eastbound lanes were turning their heads to look at the westbound collision recovery scene. I will have more to say about this later.
[83] For example, Constable Foster opined that the westbound collision recovery scene could have been a distraction to the eastbound traffic.
Witnesses at the westbound collision recovery
[84] Since there were a number of individuals involved in the westbound collision recovery, the collision in the eastbound lane was observed by a number of individuals.
(a) Sergeant Brendan Mullen
[85] Sergeant Brendan Mullen viewed the collision in the eastbound lane from his parked cruiser in the westbound lane at the westbound collision recovery.
[86] I found that he gave his evidence in a straightforward, matter-of-fact manner. He did not embellish his testimony, and he conveyed his observations of the collision in a credible manner.
[87] He had a good viewpoint from the westbound lanes, and he was able to observe the period of time just before the collision. There were no major inconsistencies in his evidence and his evidence is also corroborated by other witnesses who observed the collision from the westbound lanes. He was not shaken in cross-examination.
[88] Sergeant Mullen described the lighting in the westbound collision recovery and confirmed that his cruiser’s rear lights were on.
[89] He stated that he observed the International slowing down from 100 km/hour to 40 km/hour as he believed the driver was viewing the collision scene in the westbound lanes. Sergeant Mullen was very concerned with this sudden decrease in speed and he was drawn to the vehicle due this reduction in speed. He stated that by slowing down, the International was creating a hazard on to the highway as other vehicles were also slowing down. He saw three other vehicles reacting the International slowing down and questioned whether they were wondering what to do, such as whether to pass it. He saw them slow down. In cross-examination, he stated that the International and the three vehicles behind it collectively became a hazard.
[90] Unlike the witnesses below, he did not recall seeing the first tractor trailer that preceded the International. He observed the International for four to five seconds slowing down to what he believed was approximately 40 km/hour.
[91] He was contemplating exiting his cruiser to wave at this driver to keep on going. He anticipated that something was going to happen.
[92] Then he saw the Volvo which did not appear to be slowing down at all crash dramatically into the three vehicles. He felt that Mr. Qureshi “had a solid length of time” to react. He admitted that the collision happened quickly. Mr. Qureshi did not sound his horn.
[93] He stated that he investigated this collision and was making efforts to put out the fire that had arisen in the pick-up truck (Dodge). He eventually discovered that there were two deceased and four injured individuals. He coordinated first responders.
[94] After Sergeant Mullen provided Mr. Qureshi with his Charter rights and caution in both official languages, Mr. Qureshi stated, “I tried to avoid the vehicle and that is why I went to the side”.
[95] Sergeant Mullen testified that he believed that he had the grounds to arrest Mr. Qureshi on the charges because:
The driving conditions were good as that section of Highway 401 is flat and straight;
There were no obstructions;
Mr. Qureshi would have had a good view from his transport truck and had the vantage point that extends as far as one can see;
He acknowledged that although it was nighttime and one would not be able to see the horizon, you can see lights of vehicles moving as far as the eye can see;
The fact that for a period of time, a transport truck had slowed down, and that truck had then activated its four-way flashers;
Several vehicles behind the International had slowed down;
He assumed that those three vehicles ahead of Mr. Qureshi would have had their brake lights activated on and off as they were slowing down;
There was a drastic decrease of speed of the vehicles ahead of the Volvo from 100 km/hour to 40 km/hour;
There was braking, even if not steady braking of the three vehicles behind the International;
There were flashing lights from the fire truck and tow truck at the westbound collision recovery scene;
These would have been signs to any driver that there is a situation up ahead to which a driver should react to maintain full control of their vehicle;
Mr. Qureshi should have adjusted his driving for the situation he faced to avoid a collision;
He never saw the Volvo’s headlights deviate from their course but instead the Volvo continued eastbound in the right lane at approximately highway speed;
The Volvo did not attempt to brake or attempt to swerve, causing a devastating impact on the Dodge;
The momentum of the Volvo carried it right through all three vehicles.
He also The Volvo ended up slightly off the right shoulder; and
(b) Steven Roberts
[96] Mr. Roberts was a volunteer firefighter from the Edwardsburgh Cardinal Fire Department who was assisting at the westbound collision recovery with the Prescott Fire Department. Both fire departments were supplying water support in the transfer of the fuel to a tractor trailer.
[97] He recalls that the fire truck scene light was on at night and that fire trucks had their flashing emergency lights on. He confirmed that the Prescott fire truck had its lights on as well.
[98] Upon the completion of the transfer of the gasoline to the tractor trailer, he joined the tow truck operators, police and truck drivers for a safety meeting. The loaded tractor trailer left and two tractor trailers from the accident were still present. He does not believe that the two tractor trailers involved in the westbound collision had their lights on.
[99] He was standing beside the cement median on the westbound section of the highway when he observed the collision.
[100] He observed the first tractor trailer slowing down. It had no lights on and it was not making any attempt to pull over to the side of the highway. He observed the International, which was behind the first tractor trailer, driving right behind it and nearly ramming it. The International had its four-way flashing lights on.
[101] He saw another tractor trailer and a vehicle pull out to pass the slower first tractor trailer and the International.
[102] He and those with him started hollering at the drivers of the tractor trailers to keep moving as they noticed traffic coming. Another witness, Mr. Paul Arcand, started hollering and waving his hands. He was standing beside him.
[103] He saw an orange car, a pick-up truck and a van following the International in the right lane and some vehicles in the passing lane. He stated that the pick-up truck had its four-way flashers on.
[104] He saw the Volvo in the right lane not slowing down or trying to change lanes but rather driving directly towards the vehicles. The Volvo did not try to turn, nor did it put on its blinkers. He only saw the Volvo’s brake lights on when it hit the blue van.
[105] There was a group debriefing amongst the firefighters from both departments after the accident with a doctor.
[106] He believed that the accident could have taken 1.5 to 2 minutes. Despite vigorous cross-examination, he was adamant that the accident would have taken 1.5 to 2 minutes. It is not clear what events were covered in this time frame.
[107] As later, he testified that it was a matter of less than 10 seconds from first observing the Volvo vehicle and the accident.
[108] I find his evidence to be credible. Subject to my comments below, I find his evidence reliable. He also had a good view from the westbound lanes. There were no internal inconsistencies in his evidence and his evidence is corroborated by other witnesses who observed the collision from the westbound lanes.
[109] However, his time frame of 1.5 to 2 minutes of how long the accident took is not corroborated by other witnesses. In addition, as discussed below, Mr. Qureshi did brake at approximately ¼ second before the collision and did steer to the right.
(c) John R. Van Dusen
[110] John R. Van Dusen was in the westbound lanes attending to the westbound collision recovery. He operates an excavating business and arrived at the westbound collision scene at around 10 p.m. His task was to clean up beer bottles that were scattered on the highway by one of the vehicles involved in the collision. He was waiting until the fuel was removed from the tanker into another vehicle.
[111] He was facing west and could see the eastbound vehicles. He noticed the first tractor trailer slowing down considerably, and this caught his attention. It had its four-way flashers on.
[112] He then noticed a second tractor trailer, the International, slowing down as a reaction to the slower pace of the first tractor trailer. He recalls saying to his son who was in the truck with him that “this is not going to be good”.
[113] He noticed vehicles behind the International and then a third tractor trailer, which did not seem to slow down, crashed into the vehicles.
(d) John W. Van Dusen
[114] John W. Van Dusen, who is John R. Van Dusen’s son, was in the truck with his father waiting to complete their task of clearing up the westbound collision. They were just talking when he noticed that, at the direction “of 10 o’clock” with respect to himself, he saw the first tractor trailer slowing down.
[115] He observed that the first tractor trailer had his four-way flashers on. Right behind him was the International with its four-way flashers on. He saw multiple vehicles “three or so also had to slow down because of the two trucks”.
[116] He then saw the Volvo travelling eastbound and then colliding into the vehicles ahead of him. The Volvo did not appear to have reacted by slowing down.
(e) Peter John Vanderzwet
[117] Peter John Vanderzwet, a member of the Edwardsburgh Cardinal Fire Department, was assisting in the westbound collision recovery when his attention was drawn to the eastbound lanes.
[118] His statement, admitted into evidence on consent, states:
[T]ransport truck coming to an immediate stop with his hazard lights in the southern-most lane. Cars behind him came to a stop as well, some skirting around him in the northernmost lane. I do not remember if there was a vehicle in front of him, and do not understand why he came to this immediate stop. It was not a gradual stop, but very abrupt resulting in near collisions of the cars behind him. Just as vehicles behind this transport came to a stop, another transport truck at full speed (estimated to be in excess of 100 kph) drove into all the vehicles at a standstill behind the first truck. This second transport did not appear to engage his brakes or make any effort whatsoever to avoid the vehicles in front of him. There was no sounding of a horn or any indication at all he was even aware of parked vehicles directly ahead of him.
(f) Bob Dixon
[119] Bob Dixon provided a statement that was admitted into evidence on consent. He is employed by the Prescott Fire Department and was at the accident scene in the westbound lane on Highway 401 when he noticed a transport truck towing a trailer van starting to slow down considerably and was “noticeably slower” in the right slow lane. He then noticed about 2-3 cars that had to slow down as there was another tractor trailer that had to brake because the first truck was going so slowly; he did not notice anything causing this slow down:
Once the second tractor trailer had to slow down to less than 40 km/h then 2 cars needed to brake hard and a white tractor trailer never appeared to brake and ran into car #2 forcing car #2 into car #1; car #1 striking the truck.
[120] He said there was a third car which was a van that ended up facing west in the eastbound lanes.
(g) David Clark Eaton
[121] David Clark Eaton’s statement was admitted into evidence on consent. His employer was KD Construction and he was at the westbound collision recovery to clean up the site when he “noticed traffic slowing down considerably maybe 20 km/h. There no sooner was a loud bang on and a tractor trailer was up against the guard rail in the far lane as sparks were flying”.
(h) Robert Gilmour
[122] Robert Gilmour’s statement was admitted into evidence on consent. He was with the Prescott Fire Department and noticed that traffic was moving slowly on the eastbound lane. He noticed two transport trucks moving very slowly at the front of the traffic and was not sure whether there were issues with the trucks as they had their “four way” on.
[123] He stated: “Second one was slowing down, by braking. There was a car following second one, with two other vehicles behind the car. That’s when the 3rd transport came in at full speed and the chain reaction started. He (truck) hit one for sure which broke out in flame”.
(i) Tim Yandau
[124] Tim Yandau is a volunteer firefighter who attended the westbound collision recovery to assist with the collision between two tractor trailers. Fuel in a tank of one of the tractor trailers was being transferred to another tank. He said that he was certain that they were complying with the regulations and their fire trucks had their overhead lights on. They also had lights to flood the area as it was dark. He recalls that the lights of the cruiser were on and the tow trucks had their lights on, but he is not certain.
[125] The witness was attempting to recall the collision to the best of his ability. However, the Court has concerns about his reliability with respect to what occurred as he was inaccurate regarding what vehicle was at the guide rail.
[126] Also, in his examination-in-chief, he said that the first tractor trailer had stopped and he saw the driver try to start it again. In cross-examination, he said that it had slowed down. He stated that the tractor trailer on the guide rail on the south side was the International (but the evidence confirms that it was, in fact, the Volvo). He marked on Exhibit 21 (originally, Exhibit 1A, photo 1) where he was at the time he saw the collision, but under cross-examination he admitted that he was really to the right of that position.
[127] His evidence had internal inconsistencies regarding whether the first tractor trailer was stopped or had just slowed down and there were external inconsistencies. Hence I find his evidence with respect to the collision dynamics unreliable.
(j) Paul Arcand
[128] Paul Arcand, a Prescott Fire Department volunteer and captain, had attended the westbound collision recovery to oversee the collision site and assist in the transfer of fuel.
[129] He provided great detail regarding how lit up the area was which included the following lighting:
Fire Trucks had their lights on;
Ontario Provincial Police Cruiser had his lights on;
Red and white flashers were on;
Wheel halogen flood lights to light up the area facing in a north easterly direction and not towards direction of the east bound traffic were on ; and
Approximately 50-100 feet was lit up.
[130] He was with Mr. Dixon at the centre of the jersey wall that separates the westbound and eastbound lanes.
[131] Mr. Arcand saw the first tractor trailer slowing down and then heard the rumbling, slowing down sound from the Jake brakes. He then observed this first tractor trailer driving past the westbound collision recovery scene and the International slowing down behind. He noted that both tractor trailers had their taillights on but he did not recall if they had their four-way flashers on.
[132] He observed the three vehicles behind the International applying their brakes and then saw the Volvo pass by at road speed without slowing down. Twenty to thirty seconds later, he saw, in disbelief, the Volvo plow into the three vehicles “bang, bang, bang”; the Volvo did not apply his brakes or make any effort to move. He was very concerned that the Volvo did not slow down.
[133] He would have been 100 metres from the initial impact.
[134] He saw the vehicles ricocheting and the fireball.
[135] In cross-examination, he mentioned that the vehicles were stopped. But he also spoke of these four vehicles slowing down and that this happened quickly, probably taking 20 seconds.
[136] I accept Mr. Arcand’s evidence as both credible and reliable. The evidence was consistent and not shaken under cross-examinations. However, I do note the above internal inconsistency and evidence of whether vehicles were slowing down or stopped does vary with the witnesses.
Witnesses in the involved vehicles
(a) Robyn Riga
[137] Robyn Riga was a passenger in the Chevrolet which was being driven by her cousin Laura Kirby. They had left Trenton and were on the way to the Ottawa airport to pick up Laura Kirby’s son. They were travelling eastbound on Highway 401 just about 1 kilometre from the exit at Prescott which leads to Highway 416.
[138] The tractor trailer right ahead of them in the right lane slowed down, put on its four-way flashers and came to a full stop. She says that the stop was made safely. They stopped behind it. Ms. Riga turned around to see if they could go into the left passing lane to pass the tractor. The next thing she knew was that she saw headlights. Originally, she thought that there were other vehicles in the passing lane, but when she reflected on it in her head, she realized that there were no other cars passing in the left lane. In reality, it was all part of the accident.
[139] She got out of the car and tried to help her cousin. She was carried by a Constable to the OPP cruiser and escorted to the Brockville hospital by ambulance. Her cousin had serious injuries and was unconscious for several days.
[140] She says that she remembers someone using an extinguisher to put out the fire at the back of the trailer.
[141] She suffered injuries to her pelvis, upper back and neck. She continues to suffer from pain in her upper back and from PTSD. She continues to experience nightmares about the accident. For treatment, she takes Tylenol and does stretching to alleviate the pain.
[142] Her evidence was short and lacked details. Her evidence regarding the International in front of her accords with some of the other evidence. Although credible, her evidence did not provide much in the form of details of speed of vehicles and collision dynamics.
(b) Lori Kay
[143] The statement provided by Lori Kay in her police interview was admitted into evidence on consent. She was driving the Honda and stated that she remembers being hit very hard from behind her and landing on her son who was in the front passenger seat.
[144] Ms. Kay and her son were driving from Toronto to Montreal to meet another one of her sons. She states that she slowed down from 100 km/hour to 90 km/hour as there was a decrease of speed in the traffic ahead.
[145] She stated: “It wasn’t like a 40 slow down.”
[146] She stated that she does not drive too close and that cars “always cut in in [sic] front of her because there is a lot of space. So, if the car in front of me was slowing down I would have, you know, slowed down too, because I don’t like to be too close.”
(c) Aaron Segal
[147] Aaron Segal is Lori Kay’s son and his statement was admitted into evidence on consent. He does not recall any of the details of the collision. He stated that he noticed that there were some people working on the other side of the road: “construction or something going on with that”.
[148] In response to a leading question from the Constable conducting the interview, when asked whether the other side was “well lit”, he said “yeah”.
[149] Mr. Segal stated: “Basically, I don’t recall exactly who was driving cautiously and who was not, because I was …- I’m pretty sure I was just on my phone or I was just minding my own business. I wasn’t really paying attention.” He said his mother was driving either around 80 or 90 km/hour. And he did not remember hitting anything in front of him: “we moved forward super quickly, might have tilted to the side”.
(d) Laura Kirby
[150] Laura Kirby’s statement was admitted into evidence on consent. She does not remember anything from three weeks before the collision or three weeks after the collision and admits that most of her memory comes from what people have told her.
[151] Both Ms. Kirby and Mr. Segal’s evidence does not provide details and is of little assistance to the Court.
Other witnesses
(a) Constable Mike Mulkins
[152] Constable Mulkins was a member of the OPP Grenville crime unit at the time of the accident.
[153] He was on duty on the morning of November 28, 2017 and was asked to assist Constable Belanger with the investigation.
[154] On the morning of November 30, 2017 at 9:57 a.m. (three days after the collision), he travelled eastbound on Highway 401 and approached the exit for Prescott. He took photos of the collision scene from the end of the curve as it leads to exit for Prescott. He was in his cruiser. He reset his meter and measured 1.8 km from there to the accident scene.
[155] He admits that he is not an expert in collision reconstruction and his objective was to determine the distance from the curve at the 401 eastbound exit to Prescott and the accident scene. He parked his vehicle immediately in front of the exit to the town of Prescott. He parked there as prior to the curve straightening out, that was the first time he could see the CN overpass and hence the accident scene spot.
[156] He stated that he got out of the vehicle and he had a clear view of the highway to the CN overpass and that the accident was west of the overpass. He took a photo with his phone. He took the photo in a seated position in his vehicle, a Ford Taurus.
[157] There were no obstacles and it was in the daytime.
[158] His measurements were completed on a different day, at a different time of day, in different conditions and in a different vehicle. Although his photos provide a framework as to the location of the collision, it does not assist the Court as to what an individual would observe at different points of the highway on the evening of the collision.
(b) Yannick Lettre-Lefebvre
[159] Yannick Lettre-Lefebvre was driving a tractor trailer which was behind the vehicles in the collision. He stated that he had time to stop when he saw the traffic slowing down up ahead and he pulled over. He was originally to be called by the Crown but given his errors regarding the accident, she and the Defence asked the Court to call him as a witness so that both counsel could cross-examine him.
[160] I give little weight to his evidence as he was in error regarding the collision including:
He said that the International was the vehicle that hit the other vehicles;
He said that the vehicles being hit were in the left lane when the evidence indicates that the collisions all occurred in the right lane; and
He noticed only one vehicle colliding with the two tractor trailers and did not notice the other two vehicles.
[161] He also stated that as an experienced trailer tractor driver, he noticed the collision on the westbound lanes, and in his experience this normally means that vehicles travelling on his side of the highway will slow down to view it.
[162] He had time to stop when he saw the traffic slowing down up ahead and he pulled over. The details of his exact location and distance from the collision were not clear.
[163] The Court notes his observation that collisions on the other side of the highway can be distractions to drivers, but, as stated above, overall his evidence was not reliable and credible.
Conclusion
[164] In accordance with s. 249(1)(a) of the Code, I find that Mr. Qureshi was driving in a manner dangerous to the public and hence the Crown has proven the actus reus of the offences beyond a reasonable doubt.
[165] The circumstances were such that drivers would be expected to drive cautiously and to adjust their speed in accordance with the traffic flow on major highway routes.
[166] Therefore, in determining whether the Crown has proven that Mr. Qureshi has met the actus reus of dangerous driving, the Court makes the following findings:
A collision had occurred on the westbound lane with emergency vehicles with lights on and other vehicles parked on the other side of the highway. Therefore, the westbound collision recovery scene was a well-lit area;
The two tractor trailers (the first tractor trailer and the International) in front of the Volvo had slowed down;
The International had its four-way flashers on. Sergeant Mullen and both Van Dusens testified that the International had its lights on (both the Van Dusens testified that the first tractor trailer had its four-way flashers on);
The three vehicles behind the first tractor trailer and the International (the Chevrolet, the Honda and the Dodge) had slowed down as they reacted to the decrease of speed of the first tractor trailer and the International;
Vehicles ahead of the Volvo were braking;
The Crown expert, Constable Jason Foster confirms from reviewing the data recovery unit that the Volvo was going 104 km/hour for at least 90 seconds before the collision, that he was on cruise control and that he was going significantly faster than the Dodge vehicle which was ahead of him;
The witnesses differ on their estimates of the rate of speed of the transport trucks (the first tractor trailer and International) and the vehicles behind them and in front of the Volvo. Yet, as described above, all of the witnesses who observed the collision from the westbound lanes and the other witnesses were consistent that the two transport trucks and the three vehicles behind them were travelling significantly slower than the Volvo; and
That the Volvo did not react at all by slowing down or adjusting his driving.
Mens Rea Analysis
Introduction
[167] In determining whether the Crown has proven beyond a reasonable doubt the mental element of these charges, I must consider the following two questions posed by Cromwell J. in Roy, at para. 36:
In light of all the relevant evidence, whether a reasonable person would have foreseen the risk and taken the steps to avoid the risk, if possible;
If so, then the second question is whether Mr. Qureshi’s failure to foresee the risk and to take steps to avoid it, if possible, was a marked departure from the standard of care expected of a reasonable person in the circumstances.
[168] The surrounding circumstances will inform the Court as to whether a reasonable person would have foreseen the risk and taken steps to avoid that risk and whether Mr. Qureshi’s driving was a marked departure from the standard of care expected of a reasonable person in the circumstances.
[169] Again, the onus, which is a heavy one, is on the Crown to prove this element beyond a reasonable doubt.
[170] Firstly, I will determine what weight I should give to the statements made by Mr. Qureshi in his interview with Detective Constable Durocher which took place after the collision.
[171] Then, in determining the issue of whether fatigue was a factor, I will review Mr. Qureshi’s logs and data from the GPS found in the Volvo.
[172] Next, I will discuss the data taken from the Volvo’s engine control module (ECM).
[173] I will then discuss the evidence of the Crown’s collision reconstruction experts, Constables Foster and Constable Prent and the Defence collision reconstructionist expert, Mr. Dalton Brown.
[174] As stated earlier, in applying the Visual Expansion Threshold and perception reaction time (PRT) to the circumstances that existed that evening, according to Mr. Brown, Mr. Qureshi could not have avoided the collision.
[175] As I will discuss in detail below, despite this expert Defence evidence, I am not left with a reasonable doubt. I find that the evidence establishes beyond a reasonable doubt that there were enough visual cues ahead of Mr. Qureshi that would alert a driver to take steps to avoid a hazard ahead.
[176] Therefore, for the reasons that follow, I find that the Crown has proven the mens rea of the five charges of dangerous driving as against Mr. Qureshi. That is, Mr. Qureshi is guilty of the five counts set out in the Indictment.
Mr. Qureshi’s Statement
Introduction
[177] During the trial, the Court found that the statements made by Mr. Qureshi to Detective Constable Lise Durocher (“Detective”) on November 28, 2017 were voluntary, and they were admitted into evidence in accordance with the principles set out in R. v. Oickle.[^2]
Defence position
[178] The Defence urges the Court to give the statements Mr. Qureshi made in this interview little weight for the following reasons:
Mr. Qureshi was not totally conversant in the French language;
He should have had the benefit of an Urdu interpreter;
The interviewing officer knew that another Constable had made sure Mr. Qureshi understood his right to counsel through an Urdu interpreter and he had spoken to counsel through an Urdu interpreter;
It is clear from a review of the transcript that he did not understand many of the Detective’s questions;
The Detective had to repeat questions or reword her questions or change the words she used;
The interview was disjointed and at times incomprehensible and did not have a flow;
Confusing language was used, e.g., the interchange of “tractor” versus “camion”;
The officer’s use of cell phones and a Kleenex box to represent vehicles in the demonstration of the paths of travel of the vehicles in the collision was confusing and incomprehensible;
An experienced officer should know her role and she should have ensured that she was properly briefed rather than leaving the interview room several times to consult her colleagues and then returning with different theories;
There were numerous interruptions by the Detective when Mr. Qureshi was trying to explain that he was not distracted by the westbound collision recovery;
The use of certain words, such as “poof” and “pow”, when describing the collision do not assist the Court in explaining the collision dynamics;
Her diagrams were not helpful;
Areas of importance were not clarified (e.g., the length of trucks); and
Mr. Qureshi was obviously upset and shaken, and he was trying to be helpful and was cooperative.
[179] In addition, the Defence submits that it was not appropriate to ask Mr. Qureshi, “what God do you pray to?”; nor was it appropriate for the Detective to testify that she has interviewed people of this descent before. This evidence demonstrates the Detective’s lack of professionalism which further taints her interview and the weight it should be given by this Court.
Circumstances at the time of the statement
[180] The evidence of Constable Robert St. Clair who was involved in the formal arrest was admitted on consent:[^3]
That Mr. Qureshi asked for an Urdu interpreter before he would talk to a lawyer, St. Clair. He said his first language was not French. With a combination of French and English he thinks he can get the message across.
He was present when Mr. Qureshi was arrested and said his French was better than his English. He wanted to speak to duty counsel. Mr. Qureshi had minor cuts to his hands.
[181] He transferred Mr. Qureshi to Constable Lapensee who is fluently bilingual.
[182] Constable Jessica Lapensee’s evidence was admitted on consent:[^4]
She confirmed that she heard Sergeant Mullen read Mr. Qureshi his rights to counsel in English and French and he responded to both languages.
At 11:22 p.m. he was transported to the Prescott OPP detachment and was offered a lawyer of his choice and Mr. Qureshi requested the Urdu Language.
At 11:48 p.m. an Urdu translator was reached and assisted in Mr. Qureshi’s conversation with duty counsel.
[183] After the collision, Mr. Qureshi was interviewed in the early hours of November 28, 2017 by Detective Constable Durocher, who was called in from the Cornwall Police Service as she spoke French.[^5]
Correct translation issue
[184] Counsel could not agree on the correct translation of French words used in the interview to English and a number of transcripts were filed.[^6] Examples of some of the areas of concern raised by counsel found in the English transcript are:[^7]
At p. 25: Whether “learned it” was the proper wording;
At p. 87: Whether “I don’t recall” should be “I no longer remember”;
At p. 98: Should it be “I am obliged” rather than “I forgot”;
At p. 150: Whether it should be “is not one year”; and
At Exhibit 32, at p. 100: the use of the word “pertubé” in the French transcript could mean upset and shaken but it could also mean agitated and in trouble.
[185] From reviewing the videotape interview, it would appear the above four translations are proper. Given the circumstances at the time, the word “pertubé” in this context could mean ‘upset’.
[186] In my view, given my findings below, nothing turns on the exact interpretation of those words. An inordinate amount of time was spent on the translations which in my view do not assist the Court in what it needs to decide. In fact, neither counsel referred to the dispute of the wording in their final submissions or explained how the wording was relevant or material to the issues I need to determine in this case.
[187] The videotape of the interview is the evidence and the transcripts are there to assist the Court and the record. For the purposes of determining the weight to be attributed to Mr. Qureshi’s statements, I will be relying on the videotape of the interview. References below to transcripts are for ease of reference only.
The Interview
[188] The interview was conducted in the French language. Mr. Qureshi told the Detective that he could speak and understand French and would let her know if language was an issue.
[189] The interview took place over a period of 4 hours and 25 minutes which included a number of breaks of 20 minutes or so in which Mr. Qureshi was waiting to speak to a lawyer and breaks when he was speaking to a lawyer. There was a small break to allow him to speak to an interpreter. There were also a number of breaks when Detective-Constable Durocher left the room presumably to speak to her colleagues who were at the collision scene.
[190] The Detective was aware that Mr. Qureshi had spoken to two lawyers, in French and through an Urdu interpreter. She told Mr. Qureshi that he had no obligation to speak to her about the charges and that everything he said would be recorded and could be used in court as evidence. He acknowledged that he understood.
[191] Mr. Qureshi confirmed that he was not under influence of drugs/alcohol. The Detective stated that if he does not understand to let her know so they could obtain a translation.
[192] References below are from Exhibit 26, the English translation of the interview. At pp. 13-14:
Durocher: Okay, are you under the influence of alcohol or drugs?
Qureshi: No.
Durocher: No, I didn’t think so, but I have to ask you the questions.
Qureshi: Yes.
Durocher: Okay, and you understand French well.
Qureshi: Yes.
Durocher: Okay, and as I mentioned, if you don’t understand something, let me know…
Qureshi: Yes.
Durocher: …and then we can get a quick translation that is why I brought you here…
Qureshi: Yes.
Durocher: …to do get a quick translation, ok.
Qureshi: Yes.
[193] Mr. Qureshi stated that he studied French when he immigrated to Canada.
[194] Detective Constable Durocher asked him if he wanted to speak to a lawyer now that the charge had changed. In addition to two counts of dangerous driving causing death, he was also facing four counts of dangerous driving causing bodily harm.[^8]
[195] Mr. Qureshi confirmed that he was driving alone and it was the second time he drove the
Volvo which was in perfect condition;
[196] Mr. Qureshi related that, on Sunday, November 26, 2017, he departed from Brossard (outside Montreal) to deliver a trailer load of 44,000 pounds of paper to Martinsburg, West Virginia. He travelled on Highway 401 and crossed the Canada/U.S. border at Thousand Islands. Then he travelled on Interstate 81 to Martinsburg through Pennsylvania. It is a 900-kilometre trip.
[197] He arrived at 1:00 a.m. on Monday November 27, 2017. He slept in the parking lot for about seven hours.[^9]
[198] He drove back and arrived at the border at Thousand Islands at 6 p.m. He made some stops along the way.
[199] He said that he was travelling eastbound just after Brockville. He saw a grey vehicle pass him and intrude into his lane. He then lost control as he was trying to avoid a truck in front of it which had stopped or slowed down. Mr. Qureshi said that he put his flashers on and his brake on, touched the grey vehicle and turned right into the guide rail.
[200] He does not remember seeing the other two vehicles nor hitting the grey vehicle which caused it to lose control.
[201] He said he was travelling 95 km/hour and he was not on cruise control. He said his truck is capped at 104 km/hour.
[202] In exhibit 26, he stated:
At p. 103, he admitted to: seeing the westbound collision recovery and there were lights. He knew that there had been an accident and he was approximately 10 truck lengths away and he says there was nothing in front of him;
At pp. 107-108, he said he saw a tractor trailer (similar to his) that had its flashers on across from the accident on the westbound lanes and it had stopped and doing nothing;
At p. 109: he stated he saw the tractor trailer with its flashers on when it was 7-8 truck lengths away; and
At p. 131 he said the tractor trailer with its flashers on was 10 or 12 truck lengths away and originally thought there was construction.
[203] Detective Constable Durocher stated Mr. Qureshi was not offered an Urdu translator as he never asked for one after she became involved. She said she felt that he understood French and could tell if he did not understand a question. She would rephrase it.
[204] According to the Defence, it was obvious that he did not understand some of the questions or comments: for example, at pp. 27-28 (Exhibit 26) when responding to questions about where he worked and when listing those places, he was asked:
Durocher: …about six (6) years that you have been in Canada, before that for Quick X, did you work someone else?
Qureshi: Yes, I worked at MTSI.
Durocher: Another trucking company
Qureshi: Yes, MTSI.
Durocher: Ok.
Qureshi: SI.
Durocher: SI Okay, and how long for…
Qureshi: Well I worked, it was these three(3) companies
[205] The following are examples where the officer had to rephrase her original question. At pp. 43-44:
Durocher: Okay, so the vehicle, the registrations in the vehicle are where in the vehicle, the vehicle registrations, where is it, the truck, the registrations.
Qureshi: Um, I didn’t understand.
Durocher: Ok sorry, you know, the registrations: you know, the truck belongs to MTI.
Qureshi: Yes.
Durocher: Is there a paper that says that, in the vehicle.
Qureshi: No.
Durocher: No, okay you know when the police stop you and ask for the documents for the vehicle.
Qureshi: Yes.
Durocher: Where are the…
Qureshi: Yes, they’re in the truck.
Durocher: Where, where are they in the truck.
Qureshi: Uh, driver’s side.
Durocher: Okay.
[206] Further, at p. 58:
Durocher: Ok, were you scheduled to work?
Qureshi: Pardon me.
Durocher: You were scheduled to work?
Qureshi: Scheduled?
Durocher: You were scheduled, that means they called you to tell you to go and pick it up?
Qureshi: Yes, yes, yes.
[207] At p. 77:
Durocher: Thousand Islands, when you to West Virginia, at the customs, were you inspected at customs?
Qureshi: Yes.
Durocher: Who looked at your truck?
Qureshi: It depends.
Durocher: Who looked, when you went down?
Qureshi: No, it depends.
Durocher: OK.
Qureshi: Because there’s a lot of trucks going through all the time, they don’t inspect them all.
[208] At p. 78:
Durocher: How long were you at customs in Ontario approximately?
Qureshi: How much time?
Durocher: Yeah, that you spent at customs, you know, providing the papers.
Qureshi: Two (2) minutes.
[209] At p. 85:
Durocher: Ok, so Thousand Islands customs, is that before Kingston or after Kingston(coughs)?
Qureshi: Pardon me?
[210] At pp. 89-90:
Durocher: Okay, so you get onto the 401 at Kingston (turns the page in her notebook) how many lanes are there on the 401 you were travelling on?
Qureshi: Inaudible.
Durocher: No, how many lanes, how many lanes?
Qureshi: Ah, there are two.
[211] The above are few examples in the interview when it would appear Mr. Qureshi did not understand a question posed to him the first time. Mr. Qureshi would indicate that he did not understand the question. The question was answered upon it being rephrased or repeated by Detective Constable Durocher. From my review of the videotape, Mr. Qureshi answered the question in fluid and comprehensible French once the question had been reframed.
[212] However, during the part of the interview that they were discussing the collision dynamics, there were interruptions, departures from the room, and leading questions. The Detective asked Mr. Qureshi to describe the collision using props and a diagram drawn by her. I will have more to say about this later.
Discussion
[213] After careful review of the videotape of the interview, I make the following findings:
Mr. Qureshi was never offered an Urdu interpreter but was told a translation could be obtained if he did not understand and he never asked for a translation;
There were a number of times that Mr. Qureshi did not understand what was being asked of him;
At those times, the Detective repeated or rephrased the questions and Mr. Qureshi appeared to understand the questions;
The early part of the video before the discussion of the collision and the travel paths was coherent and comprehensible and free-flowing. Although the Detective had to reword her questions at times, especially as it dealt with background information, Mr. Qureshi was able to give his answer in a clear manner;
The introduction of Mr. Qureshi’s’ experience, his background and his travel before the collision was clear and understandable;
His description of the locations of the westbound collision recovery and the tractor trailer with its flashers on up ahead was comprehensible as he was able to describe it in truck lengths;
Mr. Qureshi answered in a frank and clear way regarding what he saw ahead of him before the collision. I find that he understood the question of what he saw and his statements were clear:
He saw the westbound collision recovery scene when he was 10 truck lengths back;
He was not on cruise control;
He was travelling 95 km/hour;
He saw the tractor trailer in front of him with his four-way flashers when he was 7-8 truck lengths back (there is an internal inconsistency as he then later said it was 10 or 12 truck lengths away), and this tractor trailer was located across from the westbound collision recovery site; and
He said “yes” when asked if the trailer ahead was like his.[^10]
[214] However, I place little or no weight on the part of the interview dealing with the collision dynamics.
[215] That part of the interview where the Detective is telling Mr. Qureshi what she says happened using different props and Mr. Qureshi is trying to explain what he says occurred was confusing and unhelpful to the Court.
[216] This latter part of the interview becomes very disjointed and incomprehensible especially as Mr. Qureshi is being interrupted. He denied being distracted by the westbound collision recovery and stated that there was a lane intrusion (i.e. a vehicle was entering the driving lane from the passing lane).
[217] The locations of vehicles and the actual dynamics of the collision discussed during the interview remain incomprehensible and I give little or no weight to this.
[218] Also, when Mr. Qureshi did provide an observation, Detective Constable Durocher did not explore it or ask him to elaborate. Mr. Qureshi was consistent in quantifying distances by using truck lengths. This part of the statement is clear. But Detective Constable Durocher failed to explore fully what that meant, and we are left with no definitive value of the length of his “truck lengths” although it would appear when he was describing the flashing lights on the tractor trailer he was stating that the truck was similar to his.
[219] At p. 105 of the French version of the interview,[^11] when Mr. Qureshi says “brilliant”, she does not ask him to specify whether he is describing a car or a light. In evidence, Detective Constable Durocher believed he was talking about a car.
[220] The other issue which arises upon reviewing the video is whether she provided sufficient time for him to explain his version of events.
[221] There were leading suggestions. Detective Constable Durocher uses the term “little car” when Mr. Qureshi did not.
[222] The Detective used noise to demonstrate the impact of the vehicles.
[223] Most concerning is the use of diagrams and props such that it impacted on the ability of the Court to discern what is being demonstrated by Mr. Qureshi. These diagrams were drawn by the Detective.
[224] Finally, it is questionable whether it is appropriate to ask an individual what god he prays to. The Detective indicated that this was directed to ensure that Mr. Qureshi understood the need to tell the truth. In my view, this objective could be achieved by a more direct but tactful question.
[225] Further, I am not convinced of the relevance of the Detective’s testimony that she had past experience of individuals of Mr. Qureshi’s descent. In my view, this comment suggests some stereotypical views.
[226] I agree that the above two examples compromise the Detective’s professionalism and it is certainly not the standard one expects from police officers performing their duties.
[227] However, in my view, these comments does not detract from the clear statements Mr. Qureshi made voluntarily as set out above.
Constable Andrew Jocko’s evidence regarding the logs
Introduction
[228] One of the issues that goes to the mens rea and whether it rises to the criminal level as articulated in Beatty is how long Mr. Qureshi had been on the road driving his truck. It had been explained by Constable Jocko that the maximum workday for a commercial driver is 16 hours and then they are expected to take an eight-hour rest.
[229] The Crown submits that fatigue is a consideration in this case. Mr. Qureshi had been driving for over 32 hours without the regulated rest periods and hence took risks that should be considered when determining the mental element of the offences.
[230] The logs completed by Mr. Qureshi suggest that he failed to take the appropriate rest time as required by law.
[231] Although, there is no evidence that someone assisted in driving on this occasion, there is evidence that in the past Mr. Qureshi had co-drivers to assist him in driving. Certain logs were also missing. No expert evidence was called on the effect of fatigue on Mr. Qureshi’s driving.
[232] For the reasons that I will fully explain below, I find that the Crown has not proven that fatigue was a factor in this matter beyond a reasonable doubt.
Constable Jocko’s evidence
[233] At the time of the collision, Constable Jocko was working with the OPP as a commercial vehicle inspector.
[234] He gave evidence regarding the statutory limits of hours of service for commercial drivers found in the commercial motor vehicle driver regulation, Hours of Service, O. Reg. 555/06:
Driver shall not drive after 13 hours of driving: s. 9(1).
Driver shall not drive after 14 hours on duty: s. 9(2).
Driver shall not drive after 16 hours have elapsed from the end of the most recent period of eight or more consecutive hours of off-duty time: s. 9(3).
On duty time can be a combination of driving and other activities in relation to the vehicle, such as fueling, maintenance, being loaded, crossing the border, any type of commercial activity and pre-trip inspection: s. 2(2).
Depending on the trip, a driver may not meet the statutory limits, but the driver’s day cannot be longer than 16 hours as 16 hours is the lapse time rule.
Constable Jocko could not find an 8-hour block of time off from November 26th to November 27th based on the information pulled from the GPS.
The two hours do not have be consecutive and can be broken into 30-minute increments: s. 6(2).
[235] Upon his review of the commercial vehicle inspection report and the logs kept by Mr. Qureshi, Constable Jocko found that Mr. Qureshi was driving after 16 hours which was contrary to the commercial vehicle driver regulations. Using the documents collected from documents found in the Volvo, he was able to piece the logs together using the global feed app as well as the receipts and he found that Mr. Qureshi would have ended his 16-hour maximum period at 6:30 a.m. on November 27, 2017.
[236] He testified that the logs from November 18 to 25, 2017 were missing but admits that he never ordered them. He indicated that the last log entry was on November 27, 2017 at 1:15 a.m. in Martinsburg, West Virginia, and that he inferred that Mr. Qureshi had completed other stops from reviewing the documents retrieved from this cab, including bills of lading.
[237] Constable Jocko confirmed the following:
That Mr. Qureshi’s logs were complete and detailed except for November 27, 2017 when he did not update his log for change in duty requirements.
That he did make a request with Constable Donnelly that the missing two weeks’ logs be obtained through a warrant through Quebec but that this was not done;
That he did not complete a search of the cab at the collision site as it had been sealed and hence he had no access;
That he completed a thorough search on December 4, 2017 and searched every cavity in the cab and found all documents;
That he believes that the customs’ Constables at the border crossing do not have the authority to inspect the logs of commercial truck drivers;
That the company’s records showing a November 23, 2017 delivery date to the Resolute company were not accurate as that was the planned date but the actual date as shown in the bill of lading in Exhibit 9 was November 27, 2017; and
That the company’s records show a November 28, 2017 delivery at Invisti in Kingston when that company confirms that the delivery took place on November 27, 2017.
[238] I find that the weight of Constable Jocko’s evidence is diminished because:
He was not aware of certain documentation that was in the possession of the investigating Constable which he admitted would have assisted him in the estimates;
He was using Google feed regarding distances and time of travel between distances. However, this app uses the centre of town for its measurements of distance and time, and hence this would have some effect on the distances and times as Mr. Qureshi would not necessarily have gone downtown for his pick up or drop off;
He did not confirm that the date stamp at some of the businesses were properly functioning and hence it cannot be certain that the time stamps on the documents, including the bills of lading, showing when Mr. Qureshi would have attended there were accurate; and
He was not aware that Mr. Qureshi’s vehicle was physically capped at 104 km/hour.
[239] Nevertheless, I find that his evidence, in combination with the GPS logs as discussed below, indicates that Mr. Qureshi’s vehicle was completing a shift that was in excess of the legal maximum of 16 hours.
Ronald J. Vandeursen
[240] Provincial Constable Ronald J. Vandeursen is a Constable with the OPP Traffic Support Unit of the Highway Safety Division. He has received training as a Collision Reconstructionist and a Technical Traffic Collision Investigator and GPS Forensics and Blackthorn/iVe Certification from Berla Corporation. His report was filed with the Court.
[241] He extracted and provided an analysis of track points, tracklogs, waypoints, routes and any other navigation data stored in a Garmin GPS (Global Positioning System) unit from the Volvo concerning the collision.
[242] The GPS is a satellite-based navigation system that provides location and time information anywhere on or near the Earth.
[243] The data extracted from the Garmin unit consisted of eight tracklogs and 8668 track points ranging in date from November 17, 2017 to November 27, 2017.
[244] The data is divided into tracks which are normally recorded each time the GPS unit is powered on, usually when the vehicle is started, until it is powered off. An on/off cycle generates a separate tracklog labeled with the date and time of activation.
[245] Eight tracks were presented to the Court. The tracks provide data at various intervals ranging from a few seconds to a minute. The data provided included: elevation; distance; length of time between items; speed; course; date and time; and position (location identified by longitude and latitude).
[246] Constable Vandeursen confirmed that the GPS is not particular to a vehicle. It can be removed and measurements could be taken by the GPS if an individual walked with it. The GPS cannot confirm who was driving the vehicle and whether the GPS was always in the Volvo.
[247] The log for November 27, 2017 had not been located. Nevertheless, Constable Vandeursen pieced together Mr. Qureshi’s route for that day based on the documents he had retrieved from the cab of the Volvo. Based on the bills of lading, border crossing documents and other information, he had estimated that by the time of the collision at 10:30 p.m. on November 27, 2017, Mr. Qureshi had been on duty for 32 hours. If that is the case, then Mr. Qureshi at the time of the collision had been in breach of the regulations governing commercial truck drivers.
[248] I accept that based on the information that was available to him, this witness’ evidence was reliable and credible as he was knowledgeable in the area and prepared his conclusions regarding the GPS locations and gave his testimony in a fair and impartial manner.
Fatigue Discussion
[249] According to this period of travel and the logs before the Court, Mr. Qureshi did not take the proper rest periods required by the Regulations. The Court also heard that Mr. Qureshi misrepresented his rest periods on his log book and in his statement to Detective Constable Durocher. The GPS data confirms his travel, his route and his times of travel. Notably, when he said that he was resting from 1:30 a.m. to 8 a.m. on November 27, 2017, he was actually travelling from Martinsburg to Richmond, (i.e. GPS data stated he arrived in Richmond at 6:05 a.m. on November 27, 2017).[^12]
[250] Firstly, the Defence argues that the Court cannot infer that Mr. Qureshi was the sole driver as he has had co-drivers in the past and there was no effort to find the missing logs. In addition, the GPS can be removed from vehicles and hence would not necessarily reflect the time the Volvo was on the road.
[251] Certainly, if indeed Mr. Qureshi was travelling 32 hours on the road without proper rest periods in accordance with the regulations, the Court would consider this in determining what a reasonable person would do to avoid possible risk. I note that Mr. Qureshi did indicate to the Detective in his interview that he was driving alone at the time of the collision.
[252] However, based on the evidence before me, I cannot conclude beyond a reasonable doubt that the GPS data and the logs confirm that Mr. Qureshi failed to comply with O. Reg. 555/06. As stated, logs were missing and were never retrieved and there was no corroborating evidence from Mr. Qureshi’s employer confirming that he was the sole driver.
[253] Alternatively, the Crown argues that the Court can infer that Mr. Qureshi would have been tired if he had been on the road for 32 hours without the proper regulated breaks.
[254] The Crown relies on R. v. Delac.[^13] However, that case is distinguishable. In that case, the Court made the inference that fatigue was present as the accused fell asleep while being transported in the police cruiser to the police station.
[255] The Crown led no evidence on the effect that fatigue would have had on Mr. Qureshi’s state of mind. No expert gave evidence to demonstrate how this length of driving on the highway would affect Mr. Qureshi’s ability to perceive and react to traffic.
[256] Instead, the Crown asked Mr. Brown, the defence expert, to provide his opinion on the effect of fatigue on the PRT. Mr. Brown stated he did not have expertise in fatigue issues.
[257] During his cross-examination, the Crown asked Mr. Brown about the article of the Australian Transport Safety Bureau, Department of Transport and Regional Services, Demonstration Project for Fatigue Management Programs in the Road Transport Industry: Summary of Findings, by Ann Williamson et al., Report No. CR 192 (February 2000).
[258] Mr. Brown was not familiar with this article regarding fatigue and the effect of impairment on driving. The article was entered in evidence as a lettered exhibit.
[259] In his report, Mr. Brown did not examine driver fatigue. He inputted the physical evidence, module data and conditions of the evening and the vehicles involved and obtained values. These resulted in “normal” values so he did not think that there were other factors.
[260] Nevertheless, Mr. Brown opined that fatigue as well as alcohol impairment could be a relevant factor on the PRT and in his opinion, Mr. Qureshi’s PRT was well within normal limits given the studies conducted on this subject. Mr. Brown does not believe that fatigue was an issue as Mr. Qureshi was attentive enough to apply brakes in that short period of time. In my view, Mr. Brown went beyond his expertise in providing this opinion.
[261] I am not satisfied beyond a reasonable doubt that the Crown has proven that fatigue was a factor on Mr. Qureshi’s driving ability.
Michael Pierson
[262] Mr. Qureshi’s stop in Kingston was confirmed by Michael Pierson, Chief of Emergency Preparedness and Response and Security Leader with Invista Kingston. His evidence, admitted on consent, was a December 11, 2017 email to Constable Belanger, the investigating officer.
Expert’s Duty to the Court
[263] At this point, the Court will pause to make some general comments about expert evidence. Crown and Defence focussed their arguments on the weight to be placed on the expert evidence of Constables Prent and Foster for the Crown and Mr. Brown for the Defence.
[264] Briefly, in White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182, the Supreme Court outlined the two-step process when admitting opinion evidence:
Assess the preconditions to admissibility set out in the test under R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9; and
The Court is to act as a gatekeeper to protect the trier of fact from insufficiently probative evidence. This is the discretionary weighing of whether the benefits, or probative value, outweigh its potential risks.
[265] The below experts were qualified after a voir dire and neither Crown nor Defence vigorously debated the qualification of the experts below.
[266] However, opinion evidence is admitted on the basis that the experts owe a duty to the Court to provide evidence that is fair, objective and non-partisan.
[267] It is through these lenses that the Court will determine what weight to be placed on the opinion evidence of Constables Prent and Foster and Mr. Brown.
Constable J. Chris Prent
[268] Constable Prent was qualified as an expert in collision reconstruction and engine control module analysis. His data informed the collision reconstructionists, Constable Foster and the Defence expert, Mr. Brown.
[269] On December 4, 2017, Constable Prent attended at the Brockville garage with a warrant and removed the following from the Volvo:
Engine control unit (“ECU”) which may contain engine features and parameters;
Vehicle Electronic Control Unit (“VECU”) which may contain sudden deceleration and last stop data; and
Instrument Cluster which may contain system date, time and vehicle mileage.
[270] Constable Prent relied on ECU data as well as collision scene measurements and photos, other Constables’ notes, the police occurrence report and Ministry of Transportation records. He also physically examined the Volvo. Photos of the interior of the Volvo taken by Constable Foster on December 4, 2017 were misplaced.
[271] Constable Prent’s February 9, 2021 photo of the interior of a 2019 Volvo which is a year younger than Mr. Qureshi’s vehicle is given little weight. It is not the model of the same year and Constable Prent admitted that the interiors could differ slightly.
[272] His main role in this investigation was to obtain the data through Hrycay Consulting Engineers Incorporated which is an approved service provider for Volvo Truck North America and the only authorized Canadian representative which has the software to properly image the electronic data contained in the various vehicle modules.
[273] From the data, Constable Prent set out graphs indicating the following information for each .25 second interval which includes information of accelerator position; engine speed; whether the cruise control is on; and whether the park, service or engine brake was applied.
[274] Constable Prent confirmed that the data showed that at 60 seconds before the event, the Volvo was travelling at 65 mph or 104.9 km hour. As stated earlier, this was the maximum speed that this vehicle could attain due to the pre-set maximum speed and this speed continued at a constant speed until -.25 seconds (i.e., just before the collision).
[275] The threshold event (or triggered event) is identified as time 0.00 in the record.
[276] At time 0, the Volvo’s speed was 55 mph or 88 km/hour. This meant that the vehicle had, during this period of time from -.25 seconds to 0.00, experienced a change of speed of 16.1 km/hour or -4.47 m/sec or a deceleration rate of approximately -17.81 m/s/s. Constable Prent indicated that a normal deceleration rate for this type of vehicle would be -6.37 m/s/s. The deceleration rate experienced here can only be because of a collision occurring.
[277] At 0 time, the acceleration pedal position (or throttle as shown in the graph) shows 89% position. He indicated that this means that Mr. Qureshi touched his accelerator pedal accidentally when reaching for the brake, or that when he panicked he inadvertently reached for the accelerator pedal.
[278] At 0 time, the graph shows 55 mph, and the brake on. The cruise control was still in an “on” position but was no longer activated.
[279] The last stop event is created when the vehicle has stopped moving and the speed is 0. If the triggered threshold event is 0 as indicated above, then the last stop record contains 89.75 seconds of data at ¼ second intervals prior to the vehicle coming to a stop.
[280] The last stop event occurred at -7.75 post trigger. This event created in the data records when Mr. Qureshi’s vehicle has stopped moving or the vehicle speed has reached zero. That is, at 7.75 seconds after the triggered event, Mr. Qureshi’s vehicle came a complete stop.
[281] Constable Prent indicated that the event data recorder (“EDR”) captures the data transmitted across the vehicle network asynchronously, i.e., the communication over the network is at irregular intervals within the .25 second time period. He used the following example: the data observed at -.2384 seconds will be reported at the .25 second time period.
[282] Constable Prent is satisfied that the electronic data captured by the EDR regarding the recorded vehicle speed was correct and that there is no challenge to this finding.
[283] He relied on Constable Foster’s distance measurement taken at the collision scene. The distance from the area of impact between Mr. Qureshi’s vehicle and the Dodge to the final resting position of Mr. Qureshi’s vehicle was 82 metres.
[284] Based on the data, Mr. Qureshi did not have time to make a safe stop and avoid the collision. He had less than a second to apply the brakes.
[285] Under cross-examination, he indicated that the PRT is based on a person’s ability to perceive and react to an incident. He did not dispute Defence counsel’s suggestion that there could be an average of 1.5 seconds for PRT.
[286] He concluded generally, but not specifically with respect to Mr. Qureshi, that the inability of a driver to avoid a collision in these circumstances could be a result of sudden onset of events, lack of attention or driver fatigue or failure to keep an appropriate following distance between vehicles.
Defence Position
[287] The Defence accepts the findings of Constable Prent regarding the data retrieved from the Volvo’s ECM. However, the Defence submits that Constable Prent’s impartiality as an expert is questionable because:
On the request of defence during cross-examination, Constable Prent should have provided the calculations requested regarding the PRT;
She had concerns about him assisting the Crown during her cross-examination of Mr. Brown; and
During the Crown’s cross-examination of Mr. Brown, the Crown attempted to introduce new documents prepared by Constable Prent.
Discussion
[288] The Court finds that the Crown has proven beyond a reasonable doubt the continuity of the ECU data, as well as the integrity, accuracy and reliability of the data retrieved by Constable Prent.
[289] I also make the following findings:
The Crown is entitled to consult with her experts during the cross-examination of the defence expert (the Defence does not contest this);
Regarding Mr. Prent’s assisting the Crown by preparing documents for the use of the Crown during the cross-examination of Mr. Brown, I agree that this does cause the Court to pause;
The Court denied the Crown’s request to introduce documents prepared by the Crown’s experts during the cross-examination of Mr. Brown as this would amount to the Crown splitting its case;
Regarding Constable Prent, I find his evidence to have been given in a fair and measured manner. He also admitted that given the distance between the Volvo and the Dodge at the time Mr. Qureshi applied his brakes, he would not have had the time and distance to stop. He also agreed regarding the existence of the theories of PRT and the visual expansion threshold;
However, when asked by the Defence to complete some calculations, he declined. The Defence had posed these questions in anticipation of her own expert providing his own calculations and to avoid the rule in Browne v. Dunn (1893), 1893 CanLII 65 (FOREP), 6 R. 67 (U.K. H.L.); and
I would have thought that an independent and impartial expert would, in his role as an expert, do what is necessary assist the Court in understanding scientific theories. This is especially so when these calculations form a large part of the Defence evidence. However, the Court notes that he stated that he was “caught off guard” and does not use the computer programs regularly.
[290] These aforementioned conclusions do not affect the reliability of Constable Prent’s evidence on the data retrieved from the Volvo and its interpretation. He did not opine that it was Mr. Qureshi’s lack of attention or driver fatigue, or failure to keep an appropriate following distance between vehicles that led to the collision. He made these comments generally.
[291] In conclusion, I accept his evidence on the data collected but give no weight to his general suggestions as to what may have caused the collision as it relates to Mr. Qureshi.
Experts in collision reconstruction
Constable Jason Foster
[292] Constable Foster has been a member of the Accreditation Commission for Traffic Accident Reconstructionist (“ACTAR”) since 2015, and he is also a teacher and presenter on courses dealing with collisions. As a member of ACTAR, he fulfils his mandatory regular training by attending seminars on a regular basis to keep up with new technology and changes to the industry and he has extensive experience in dealing with accident reconstruction.
[293] Constable Foster’s report (“Foster report”) does not provide a detailed explanation or road map of how he arrived at his findings and opinions, i.e., there was no pathway from the evidence to his conclusions found at p. 38.
[294] He stated that his intent was to capture the major points in this report which he has analyzed and determined to be the truth. He said: “These reports are designed to illustrate to the reader in the simplest form what transpired during the collision. My presence here at court and having the ability to, say, examine further in a court situation, is, I think, the paramount importance of being a collision reconstructionist. Again, I want to stress that I’m here as a resource to all the parties involved.”[^14]
[295] The Foster report was comprised of 38 pages and appendices of measurements and notes and 733 photos. His oral testimony in chief spanned over 2.5 days plus 3 days in cross-examination. He provided extensive detail, as set out below, about his evidence-gathering, the circumstances as they existed at the time of the collision, the dynamics of the collision and the movements of the various vehicles involved and his findings.
[296] The Court granted the request by the Defence a period of time after the completion of his evidence to prepare for cross-examination and to consult with her own expert. This remedy was granted pursuant to s. 657.3 of the Code thereby permitting the Defence their right to full answer and defence.
Constable Foster’s gathering of evidence
[297] Constable Foster arrived at the collision scene at 1 a.m. on November 28, 2017.
[298] The collision scene was closed to public traffic and he obtained brief details from Sergeant Mullen. As a collision reconstructionist, Constable Foster testified that it is not part of his process to consider what people tell him. His duty is to identify evidence and come to his own conclusions. For that reason, he does not consider statements provided by the witnesses to the police.
[299] As part of his investigation, Constable Foster:
took photos of the scene using a Nikon D7000 SLR digital camera;
completed mapping of the scene using the Sokkia SRX robotic electronic distance measuring instrument (also called a “total station”) which was utilized by collision reconstructionists in 2017;
personally examined the collision scene and the involved vehicles and took scene measurements and scale diagrams;
reviewed technical collision investigation field notes and vehicle examination field notes for the International and the Volvo;
measured the roadway drag factor using a Vericom VC4000 accelerometer;
reviewed photos taken by Sergeant D. McLeod who attended the scene as a technical collision investigator;
considered the completed vehicle examination field notes for the Dodge and the Honda from Constable J. Golds, a technical collision investigator;
reviewed the evidence of Constable Andrew Jocko who conducted a commercial vehicle inspection of the Volvo;
reviewed reference materials; and
report management system (“RMS”) reports in relation to the collision.
Constable Foster’s conclusions
[300] Constable Foster found that the Volvo was travelling at 104 km/hour with its cruise control active for approximately 90 seconds prior to initiating a sudden deceleration when the Volvo collided with the Dodge. It is his opinion that Mr. Qureshi took no action to stop or swerve out of the way of the vehicle ahead of him.
[301] Constable Foster found that there were separate collisions which occurred in a very short timeframe. The six diagrams set out the various markings on the roadway which show points of collision, various debris, travel paths of the vehicles and the resting points of the vehicles.[^15]
[302] His conclusions are:
The Volvo hit the Dodge vehicle directly on and not off centre;
The Dodge was travelling significantly slower than the Volvo;
The Volvo/Dodge combination hit the Honda squarely in a uniform manner to the rear of the vehicle;
The Volvo/Dodge/Honda hit the Chevrolet; and
The westbound traffic recovery may have been a distraction to the motorists travelling eastbound.
[303] In his report, Constable Foster remarked on the damage to the various vehicles as follows:
(a) Dodge
[304] The Dodge, the first vehicle struck by the Volvo, burned on impact, causing the deaths of Mr. Keeler and Ms. Keeler. Their bodies were extracted by tools located at the Centre for Forensic Sciences. The vehicle was significantly damaged in the collision.
[305] He found that the Dodge’s leaf springs caused the gouges in the roadway at the Evidence Marker A. That is the point of collision when the Volvo rear ended the Dodge vehicle.
[306] The tire scrubs on both sides of these gouges were from the Dodge’s wheels.
[307] The fluid on the roadway originally came from the Dodge and eventually stemmed from the Chevrolet.
(b) Honda
[308] The Honda was in front of the Dodge and it was hit squarely by the Dodge.[^16]
[309] The Honda had extensive damage to its front and rear and the roofline was buckled near the C-pillar (which is the pillar behind the rear window seat).
[310] It had travelled in a counter clockwise rotation. Its resting spot was on the north shoulder of the eastbound lanes facing westward.
[311] The Dodge’s driver’s side air bags were deployed and the Honda’s right side and front air bags were deployed.[^17]
(c) Chevrolet
[312] Due to the rear end collision force to the vehicle in a forward direction, the vehicle experienced forward force. Constable Foster opines that the Chevrolet’s brake lights were on because of the “hot shock” condition, i.e., the hot shock is a sign that the taillights were lit at the time of the collision; if unlit, the filament would have been more brittle and more prone to snapping.
[313] The Chevrolet speedometer was in a locked position of 30 km/hour but this is not an indication of speed at the time of collision.
[314] There were no obstructions in the interior of any of the vehicles involved in this multi-car collision.
[315] After the collision, the Chevrolet was found in the right lane and was facing southwest. It had severe damage to all sides as it was crushed to the rear of the vehicle and the left door had been punctured by the left rear corner of the International.
(d) International
[316] The International was in the right lane facing east and its rear had been in contact with the Chevrolet. There was damage to the rear underride bar, the right taillight lens was broken and the right side of the rear was damaged. There were certain defects noted by Constable Jocko which related to lighting air supply, wheel bearing and tires. Constable Foster did not find any of these defects contributed to the collision.
(e) Volvo
[317] The Volvo tractor trailer driven by Mr. Qureshi collided with the Dodge. The Volvo/Dodge combination collided into the Honda. That Volvo/Dodge/Honda combination collided into the Chevrolet. And that Volvo/Dodge/Honda/Chevrolet combination collided into the International.[^18]
[318] The Chevrolet was hit from behind more on the right side as the left rear side was undamaged.
[319] The Chevrolet rotated in a clockwise direction and was in contact with the International as it was hooked to the International on the left rear side.[^19]
[320] He also found dual wheel tire marks on the south shoulder that extended on an angle toward the south guardrail. These tire marks extended past the damaged guardrail and ended at the right wheels of the Volvo.
[321] The Volvo also hit the guard rail and then came to a rest with the rear trailer on the shoulder and behind the rail. It came to a stop facing northeast.[^20]
The Defence’s criticisms of the Foster Report
[322] The Defence submits that Constable Foster became defensive in cross-examination and was not prepared to consider other collision dynamics.
[323] As well, the Defence argues that the investigation was lacking for the following reasons:
Constable Foster failed to consider the witnesses’ statements;
The police failed to obtain the data regarding the speed from the other vehicles involved in the collision, although Mr. Brown concedes that it is not available;
The police failed to take crush measurements;
The police failed to investigate what occurred prior to the collision;
There were no photos representing the lighting as photos 105-109 at Exhibit 1A are not representative of the lighting that evening;
The police lost the original photos of Mr. Qureshi’s Volvo vehicle;
Constable Foster’s report is skimpy and did not provide a complete foundation for his findings;
If the vehicles were hit square on as suggested by Constable Foster, then there would have been an accordion-type accident as in R. v. Tabanao;[^21] and
The Crown’s Google GPS video which was to portray the scene was not done on the day of the collision, nor at the same time of day and not at the height Mr. Qureshi would have been on the night of the collision.
Witnesses’ statements
[324] While Constable Foster concentrated on the physical evidence in the preparation of his figures and diagrams, Mr. Brown considered the witness statements in arriving at his conclusions.
[325] As a collision reconstructionist, Constable Foster stated that his opinion is based on evidence from the collision which is set out in the “Basis for Analysis” section at p. 7 of his report. This includes his own personal examination at the scene and the vehicles involved, photos, field notes and reports prepared by his team.
[326] Constable Foster indicated that he did review the RMS reports (Police Record Management System) which include the various witness statements. Constable Foster stated in his report and confirmed in his testimony that these reports “did not form any part of this investigation’s Collision Analysis and Conclusions”.
[327] Constable Foster testified that witness statements are not helpful to him in the preparation of his opinion as individuals’ observations are influenced by intent and perception and are not necessarily reliable; but he reviews them to determine if there are any “drastic anomalies”. He read only the synopsis of Detective Constable Durocher’s interview with Mr. Qureshi.
[328] He did not consider that some witnesses had indicated that there were vehicles in the left lane who were passing but noted the following: “Some of the statements were confusing to quantify or identify particular vehicles. I do recall several statements that mentioned additional vehicles in the area and I forget who it was but someone being overtaken by another vehicle prior to the collision but the specifics of those, those statements I don’t really recall”.[^22]
[329] Constable Foster said that perceptions differ and he reviews statements with skepticism and that he would not place a great deal of weight on statements.[^23]
[330] He did admit that if new evidence were to arrive, then his opinion might change.[^24]
[331] Although witness statements can be helpful, these witness statements are not evidence and must be approached with caution. As will be discussed below in the review of Mr. Brown’s evidence, by assuming a witness statement is accurate, an expert may make assumptions that are not in evidence. This type of assumption skews the results and diminishes the weight of opinion evidence.
[332] In my view, witness statements can vary and without the opportunity of exploring the statement in court through vigorous cross-examination, it may be prudent not to over-rely on these statements.
[333] On the other hand, they can be considered in some circumstances such as the fact that a few witnesses mentioned that there were vehicles that had used the passing lane and those statements were never mentioned in the Foster report.
[334] However, at the end of the day, the task of a collision reconstructionist is to reconstruct the collision and in doing so, he must review the physical evidence and apply the science underlying the physical world.
Lighting
[335] Mr. Brown opines that the photos taken at the collision scene did not capture the lighting on the highway at the time of the collision.
[336] In his computer-generated view, he attempted to simulate the view that Mr. Qureshi would have had on that evening. In my view, that image does not capture the lighting on that evening as Mr. Brown did not include the lighting that would have emanated from Mr. Qureshi’s Volvo since he was not aware of what type of headlights he had.
[337] The Crown’s Google video[^25] consolidates the views of Highway 401 in the vicinity of the collision as per the cardinal points travelled by the Volvo as taken from the Volvo GPS Garmin.[^26]
[338] However, the video was taken during the day in July 2018 and hence is not indicative of the lighting that would have existed on November 27, 2017 at 10:27 p.m.
[339] Given the different time of day and different day of the year, the Court gives little or no weight to what was observed on this video.
[340] A photo of lighting at the time would have been helpful and so would a photo of the interior of the Volvo (photos of which were lost), but this is not determinative what weight should be placed on this report. I do note that Constable Prent has indicated the challenges of taking night time photos such as: ensuring that the camera used in the evening captures the right lighting considering the exposure, the flash and the user of the camera.
[341] Consequently, the Court finds that there is no imagery in evidence depicting the lighting on the evening of the collision.
Whether the Dodge and the Honda were hit at an angle or square on
[342] A considerable amount of Court time was devoted to the issue of whether the Volvo hit the Dodge (and the Volvo/Dodge hit the Honda) at a slight angle as opined by Mr. Brown or square on as opined by Constable Foster.
(a)Constable Foster’s Opinion
[343] Although Constable Foster acknowledged that there may have been a slight offset given that the Volvo was wider than the Dodge, he opined that the Dodge was hit square on by the Volvo.
[344] More specifically, he admitted that the Dodge was narrower than Mr. Qureshi’s vehicle but believed this was only by 23 centimetres despite that the diagram found at p. 44 of his report (and diagram 5 in Exhibit 16) shows that both the Volvo and the Dodge directly aligned and appeared to be the same width. The Defence believed it was more than that.[^27] In his view, using the inaccurate width of the Volvo in his diagrams did not affect his opinion in this multi-vehicle crash.
[345] He used the Total Station to obtain a damage profile of the vehicles. He stated that the crush measurements (i.e., measurements of the depth and size of the damage to the vehicles) are not applicable here because:
As tractor trailers are involved and generally they are completely different entities than other vehicles and the government conducts the safety tests on passenger vehicles;
The crush analysis would not apply as safety tests are on single vehicle and here many vehicles were involved;
For example, the Volvo collision on the Dodge and the Volvo/Dodge collision on the Honda are two separate collisions and not accounted for in any insurance safety tests; and
In his view, the Dodge had lost its structure due to its destruction by the fire such that one cannot discern that there is more damage to the driver’s rear side of the Dodge.[^28]
[346] According to Constable Foster, the Dodge hit the guide rail and was redirected back into traffic and then commenced its counter clockwise rotation. At the collision scene, he determined that the black marks on the guide rail were from the Dodge.
[347] Constable Foster’s findings were in part made by reviewing the extensive markings on the road that were left from the various vehicles and the damage to the vehicles:
The Dodge was struck directly from behind by the Volvo, causing gouge marks on the highway which were caused by “maximum engagement of the colliding vehicles” which is where the Volvo came into first contact with the Dodge.[^29] The high front bumper and push bar of the Volvo caused an override which resulted in a downward force through the rear of the Dodge. This caused the Dodge’s rear leaf springs and rear wheels to mark up the road surface.
The Dodge hit the Honda which was also in the right lane. The damage to the Honda indicates that it was struck squarely behind and was travelling significantly slower than the Volvo/Dodge combination. The Dodge was crushed between the Honda and the Volvo, causing the undercarriage to scrape and gouge the road surface. Constable Jocko’s notes indicate that the right turn signal of the Chevrolet was on (see his vehicle examination field notes).[^30]
The Chevrolet was in the right lane when it was struck from behind by the Volvo/ Dodge/Honda combination. Since the Honda’s left headlight was not broken, this suggests that the Honda’s front was slightly offset left of the Chevrolet when they collided. The Honda lifted the Chevrolet’s rear off the ground which transferred blue paint from the Chevrolet’s rear licence plate onto the Honda’s hood.[^31]
Based on the damage to the Chevrolet it was travelling significantly slower than the Volvo/Dodge/Honda combination. The contact with the Chevrolet caused the Honda to rotate counter clockwise and the Chevrolet rotated clockwise. As a result of this rotation, the Honda and Chevrolet made secondary contact so that the Honda’s rear right wheel hit the Chevrolet’s rear right door and eventually the Honda struck the jersey wall and came to rest on the north shoulder facing west.[^32]
The International was travelling in the right lane when it was struck from behind by the left side of the Chevrolet which came to rest under the International’s underride bar.
The Dodge eventually hit the International and came to rest facing southwest, partially beneath the Volvo against the south guardrail. It caught fire and was destroyed. The fire also damaged the left side of the Volvo.[^33]
Damage to the right end of the International underride bar, mud flap and outer rear right tires indicate that the Dodge also had contact with the International.
[348] Specifically, he found with respect to the damage to the Volvo: the Volvo front bumper uniformly deformed,[^34] the bottom half of that guard was pushed rearward both on the left and the right front of the Volvo. In his opinion, the tears in the front of the Volvo’s fibreglass did not indicate a collision at an angle with the Dodge.
[349] He stated that the tire markings indicate that the Volvo/Dodge unit travelled eastbound as a unit in a straight line and then veered to the right until it hit the guide rail.[^35] He believed that this was likely the result of Mr. Qureshi trying to steer his vehicle to the south shoulder.[^36]
[350] He did agree that the Honda’s rear could have been more damaged to the left than the right but it was involved in various contacts.[^37]
(b)Mr. Brown’s opinion
[351] Firstly, Mr. Brown opined that there was a 3-degree angle at impact between the Volvo and the Dodge. He opined that had crush measurements been obtained then the exact points of collision and the paths of the vehicles could have been more accurately discerned.
[352] Secondly, his 16-second computer-generated video simulation[^38] was a demonstration that if the vehicles were hit square on, the Dodge and the Honda would not have rotated in a counter clockwise manner. He inputted the speed of the Volvo at 104 km/hour but not the speed of the other vehicles.
[353] He admitted that this video did not take into account any steering or braking by the drivers.[^39] He did not provide a simulation to demonstrate what the collision dynamics would have been if the Dodge and Honda had been hit at an angle.
[354] Finally, he referred to various diagrams using a collision reconstruction software. In these diagrams, he demonstrated the collisions showing the vehicles’ path of travel based on the above conclusions, the dynamics of the vehicles and the associated damage.
[355] Mr. Brown concluded with the following observations regarding the collisions:
The Volvo was eastbound in the right lane when it came up to moving or stopped vehicles in the right lane. Mr. Qureshi may have applied his brakes and steered to the right, and the exact alignment is not known given the lack of crush measurements and data.
This offset collision is also noted by Mr. Brown by the fact that he finds that there is heavier contact damage to the Dodge’s left rear corner and more damage to the Volvo’s front on the driver’s side.
Due to the contact with the Volvo, the Dodge rotated counter clockwise and accelerated, causing it to hit the Honda at an angle more heavily towards the passenger rear side of the vehicle.[^40]
Due to the contact from the Dodge, the Honda accelerated and rotated counter clockwise and contacted the Chevrolet at an angle towards the driver’s rear side; this caused the Chevrolet to rotate clockwise.
The Honda continued to rotate counter clockwise and came into contact with the Chevrolet’s passenger rear door, leaving a tire impression in the passenger’s right rear door panel. The Honda continued its counter clockwise rotation, hit the jersey wall (separating the westbound and eastbound lanes) and came to rest facing westward in the passing lane (note that the photos taken by Sergeant McLeod show the Honda actually in the shoulder of the north side).
Due to the contact with the Honda, the Chevrolet accelerated and collided with the underride guard of the International. This caused it to be impaled with the left corner of the International’s rear underride guard. It was dragged by the International until it came to a stop (there is an unknown source of scuffing on the International’s right side rear wheel).
The Dodge, which was rotating counter clockwise while being projected forward, contacted the right passenger side trailer unit of the International’s rear axles and passenger side corner of the trailer’s box. The Dodge continued its rotation and changed directions until it went underneath the passing Volvo’s trailer unit where it came to a rest on the driver’s side.
The Volvo had steered to the eastbound shoulder area and its passenger right front corner contacted the guide rail, causing the passenger’s side front bumper to bend rearward. Mr. Brown believes that the black marks on the guide rail were caused by the Volvo’s right front tire contacting it, and he noted scuff marks visible on the sidewall of the right front tire.
[356] In his diagrams found in his report, Mr. Brown admitted that the location of the various vehicles and the collisions did not line up with the physical evidence found at the collision scene. In fact, he conceded that in Figure 46, the diagram appears to show that the Honda may have contacted the Chevrolet, and he admits that they did not contact each other in the collisions.
[357] Mr. Brown noted that samples were not taken from the guide rail to determine what vehicle actually hit the guide rail. However, Mr. Brown did concede that in his own work when he was on a collision site, he would have only taken a paint sample from the scene for analysis just “a handful of times”.
Discussion
[358] There is conflicting evidence on this issue.
[359] On one hand, crush measurements of the damage to the vehicles might have been helpful in the singular contact between vehicles. However, I accept that it would have been challenging to obtain crush measurements on the Dodge given that its structure and frame were destroyed due to the explosion. In addition, Constable Foster explained why they were not obtained, i.e. there no real supporting studies using tractor trailers and multi-vehicle collisions.
[360] Mr. Brown admitted in cross-examination that the Volvo’s right passenger headlight came off before it hit the guide rail which would support the Crown’s position that the Volvo hit the Dodge square on.
[361] On one hand, it appears that the damage to the front passenger headlight of the Volvo is not induced damage but rather contact damage from hitting the Dodge.
[362] Also, there is extensive damage to the Volvo from hitting the Dodge square on is evident as there is evidence[^41] which shows the indentation of the push bar and the marking on the top from the Dodge.
[363] On the other hand, Mr. Brown’s 16 second video is partially instructive as it purports to show the path of the vehicles if they had been hit square on which would not have resulted in the Dodge and the Honda rotating counter clockwise.
[364] Certainly, there may be merit in Mr. Brown’s view that the photos show more damage on certain parts of the vehicles that suggest angular contact, e.g. that the passenger side of the rear of the Honda’s was more damaged than the driver’s side.
[365] Given the conflicting evidence on this point, I am left a reasonable doubt that the Volvo hit the Dodge square on and that the Volvo/Dodge combination hit the Honda square on.
Conclusions regarding Constable Foster’s collision reconstructionist expert evidence
[366] Constable Foster was actively involved in the investigation as he personally completed a thorough review of the collision scene, including taking photos and measurements using the Total Station.
[367] He carefully reviewed the evidence gathered at the scene, including the roadway markings, the debris collected and the damage to the various involved vehicles, the guard rail and the jersey wall. The Court finds that:
He testified in a very measured and direct manner and carefully articulated the reasons for his findings and conclusions;
He did not exaggerate or embellish any conclusion or his opinion;
He did not speculate; and
He was prepared to admit that he was not able to provide an opinion in certain matters, e.g., the speed of some of the involved vehicles.
[368] However, Constable Foster became defensive in cross-examination and initially was adamant that crush measurements would not have helped but he did later admit that they may have been of some assistance. As an expert, it is his duty to remain fair, objective and non-partisan. That is, he should remain open to alternative theories and accept or reject the proposition.
[369] He ultimately agreed that crush measurements could have been helpful. He did admit to an error pertaining to Photo 188 of Exhibit 1A and confirmed that the tire marks in that photo were from the Volvo rather than the Dodge.
[370] Ultimately, the slight 3 degree angle that is being suggested by Mr. Brown does not greatly impact on my mens rea analysis.
[371] In my view, my finding regarding this issue does not significantly diminish the weight of Constable Foster’s evidence.
[372] I find that Mr. Brown was overly critical of the work of the police investigation but he did admit, at p. 30 of his report, that “[t]he physical roadway evidence is well documented in Constable Foster's reconstruction report”. He admitted that the speeds of the other vehicles were not available as the data could not be retrieved from the vehicles.
[373] I do agree that the view of the road from Mr. Qureshi’s point of view during that evening would have been of some assistance to the Court.
[374] This was a serious multiple vehicle collision involving a number of vehicles, serious and fatal injuries and considerable debris. I find that, overall and subject to the above comments, Constable Foster’s opinion should be accorded significant weight.
Defence evidence
[375] Even when the accused does not testify, an analysis pursuant to R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, is required if there is evidence on the record from other sources that is favourable to the defence.
[376] As stated in Ibrahim, at para. 63:
This approach may be adapted to the context of dangerous driving. One suggested approach would include the following two elements:
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.
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.
[377] Again, there is no burden of proof on the defence. Mr. Qureshi does not have to prove anything.
[378] Applying the analysis mandated by W.(D.) and Ibrahim, for the reasons that follow, I am not left in a state of reasonable doubt by the evidence favourable to the defence.
Defence Expert Dalton Brown
Introduction
[379] Mr. Brown was qualified as collision reconstructionist with a certification of level 4 ACTAR rating. His curriculum vitae is extensive and includes 30 years as a Constable with the OPP as a collision reconstructionist investigating thousands of collisions. He has also played a lead role in training and teaching.
[380] His report was based on a review of the physical evidence gathered by the police at the collision scene; the photos; the data from the Volvo module; statements of the various witnesses; the weather conditions at the time; the lighting; the location on Google Earth; the reports of Constables Jocko, Foster and Prent; vehicle damage; and a number of articles.
[381] In addition, since his retirement from the OPP, he continues to work as a collision reconstructionist and to provide opinion evidence in court. He has provided the list of cases where he was qualified as an expert. He continues to read articles and keeps himself up to date as required by ACTAR.
[382] Mr. Brown completed: a speed analysis; the measurement of what it would take a vehicle to stop under certain conditions; swerve analysis of the Volvo; a discussion of perception, reaction and visibility; the various viewpoints available to Mr. Qureshi if he were travelling in his vehicle along that highway near the site of the collision; and collision dynamics during the day (at 100% illumination) and in the evening (at 15% illumination which he assumes comes from the residual light from the westbound collision recovery and without any headlights). He included various photos taken by Constable Foster and Sergeant McLeod in his report and figures that depict the scene with the various vehicles where he believed them to be at various parts of the collision.
[383] Mr. Brown did not attend the collision scene and his evidence is based on the information that was disclosed to the Defence which includes the above reports and the witness statements. He was not present at trial nor did he review trial transcripts.
[384] He was in the witness box for approximately eight days.
Mr. Brown’s Report
(a) Visual Expansion Threshold
[385] Mr. Brown applied the visual expansion threshold (also called the looming threshold) which is the theory that a driver may see an object in front of him but may not be aware how fast he is approaching the object and is closing in on it. As a driver approaches, the object becomes increasingly larger then at some point he can determine that it is an emergent hazard that requires an emergency response.
[386] The essence of his report[^42] is that for an object to become “noticeable” to the driver, the rate at which or how quickly an object becomes larger in the driver’s field of view must be significant enough to get the driver’s attention. He indicated that most drivers recognize a dangerous hazard at .006 radian/second.
[387] A stopped or slowed-down vehicle on a major route is an unexpected event. If the vehicle ahead unexpectedly stopped or slowed down, then the situation changes because the closing rate is fast.
[388] In essence, Mr. Brown’s theory is that Mr. Qureshi may have seen the group of vehicles ahead but the angular velocity was not strong or not seen as an emergent hazard. Mr. Qureshi would have gathered more information as he closed in. As he reached the point where he reached the visual expansion threshold, he would have come too close to the vehicle directly in front of him to avoid the collision. Taillights a kilometre away may not tell a driver anything about the speed at which the vehicle is travelling.
[389] In cross-examination, Mr. Brown distinguished an emergent hazard from a non-emergent hazard. This distinction had not been explained in his report.
[390] Non-immediate hazards (also called potential hazards or ) are obstacles or things in a driver’s environment which do not call for an emergency response. The software used by Mr. Brown states: “typically a driver recognizes an obstacle or environmental scenario where moderate slowing is called for”. Moreover, “[t]he typical responses to a potential hazard are to slow or to move within one’s lane”.[^43]
[391] Further, this software states that “the potential hazard phase ends when the hazard is neutralized by a corrective action of the driver, is passed, or when the potential hazard transforms into an immediate hazard (that requires an emergency response)”.
(b) Perception Reaction Time (PRT)
[392] Next, in his perception/reaction and visibility section,[^44] Mr. Brown explained that the process involves the following four parts:
Firstly, detection means that the hazard has to enter the field of view of the driver. This includes the consideration of whether there is a contrast between the object and the background, the angle of the object and the eccentricity.
Secondly, the object has to be “easily identifiable”[^45] so that the driver is able to have enough information to form a response. “A pattern with the driver seeing edges to discern how fast they may be closing in on an object is very important”.
Thirdly, the driver must decide what to do in response to the hazard.
Finally, the driver has to initiate a response whether it be steering, braking or a combination of both.
Application of these theories
[393] Mr. Brown reviewed the various witness statements and noted that, according to them, either the vehicles ahead of Mr. Qureshi were stopped or they were coming to a stop. Given that the Chevrolet’s passenger rear tire was dragged as a unit to its resting position, he believed that the International would have had to have been moving at the time. This was confirmed in the statement of the driver of the International, who stated that he felt a bump and then he stopped. However, this is not in evidence at the trial as the driver of the International did not testify.
[394] He also reviewed the data from the ECM revealing the Last Stop Record and an acceleration triggered event which showed that the speed of the Volvo prior to brake application and impact was 65 mph or 104.5 km/hour and that braking was commenced at approximately -.25 seconds before the collision took place. Given that the reading by the ECM is asynchronous, the brakes may have been applied sometime between -.25 and -.50 seconds pre-collision.
[395] Based on the Volvo’s speed and the friction value as set by the police at the collision, the Volvo would have required from 66.14 to 75.42 metres to stop if the ABS brakes were fully functioning at 85% or 75% braking efficiency respectively. This distance was not available to Mr. Qureshi.
[396] Based on the Volvo’s speed and the friction value, he would have needed approximately 43 meters to swerve and avoid the collision. This was not available to Mr. Qureshi.
[397] Mr. Brown prepared four case scenarios assuming various speeds of the vehicles ahead of Mr. Qureshi to show the time required by Mr. Qureshi to appreciate that the vehicles ahead of him were emergent hazards that required him to do something. When you consider the visual expansion threshold of .006 radian/second and add the PRT of 2.1 or 2.2 seconds, Mr. Brown opined that Mr. Qureshi did not have enough time or distance to stop his vehicle safely and avoid the collision.
(a) Case #1
[398] In this scenario, Mr. Brown assumed the following:
The unidentified lead tractor trailer (ahead of the International) had slowed down, stopped in the right lane and left the scene;
The International came to a stop and the Chevrolet, the Honda and the Dodge decelerated from approximately 40 km/hour and stopped or almost stopped behind him;
The Volvo was travelling at a constant speed of 104.5 km/hour (29 metres/second)
PRT of 2.2 seconds; and
The Volvo vehicle would have been 63.91 metres away when brakes were activated at -0.25 seconds.
[399] If the visual expansion threshold of .006 radian/second was met at approximately 3.2 seconds pre-collision at 92.96 metres, the perception delay in responding to the vehicles ahead of him is approximately 1.0 second.
[400] In summary, according these assumptions, the Volvo would have been 92.96 metres from the Dodge when Mr. Qureshi met the visual expansion threshold (i.e. 3.2 seconds before the collision). If one adds the 2.2 seconds for PRT, then there was a one second delay by Mr. Qureshi.
[401] In other words, according to this theory, Mr. Qureshi was 3.2 seconds away (i.e., approximately 92.96 metres away) when he realized that there was an emergent hazard that required an emergency response. He needed 2.2 seconds to account for his PRT which leaves 1 second of delay that is unexplained.
[402] Mr. Qureshi would have needed 124 metres to stop his vehicle safely and that distance was not available to him.
[403] Mr. Brown admitted that he did not consider Mr. Qureshi’s statement when completing Case #1. If Mr. Qureshi’s statement was accepted and he saw four-way flashers at 7-8 trucks lengths ahead, he would have been at least a minimum distance of 147 metres away (assuming a truck is approximately 21 metres in length) and then he would have had the 124 metres needed to stop to avoid a collision.
(b) Case #2:
[404] He assumed the same speeds of the vehicles as in Case #1.
[405] He used 2.1 seconds as the average perception and reaction time. At 104.5 km/hour, the vehicle would have been 61 metres away from where the brakes were activated at -.25 seconds.
[406] As in Case #1, he assumed the visual expansion threshold is met at 3.2 seconds pre-collision at a distance of 92.96 metres.
[407] He noted that there was a 1.1 second delay on Mr. Qureshi’s part in reacting that is not explained.
[408] Mr. Qureshi would have needed 121 metres to stop his vehicle safely.
[409] In cross-examination, he admitted small adjustments:
The 2.91 seconds for the visual expansion threshold provided by the computer software to 3.2 seconds to maintain consistency by using time periods of 1/5 of a second (.2, .4, .6, etc.). This adjustment does not favour Mr. Qureshi as it would increase the distance from the Dodge (92.96 metres as opposed to 84.26 metres);
Due to his input error of .67 instead of .65 for the deceleration rate as the friction value of the road vis-à-vis a tractor trailer, this discrepancy would minimally skew the numbers as there was a difference of two metres. Mr. Qureshi would have been 61 metres away from when he applied his brakes at -.25 seconds whereas the computer had a figure of 63 metres.
(c) Case #3
[410] The assumption regarding the unidentified first tractor trailer is the same as in Case #1 and Case #2.
[411] In this case, he assumed that the International and the Chevrolet, the Honda and the Dodge came to a stop and then all three accelerated to 15 km/hour.
[412] The speed of the Volvo is the same as in Case #1 and Case #2.
[413] Assuming an average perception and reaction time of 2.2 seconds, the Volvo would have been 63.91 metres away when the brakes were activated at -0.25 seconds.
[414] If the visual expansion threshold of .006 radian/second was met at approximately 3.4 seconds pre-collision at 98.77 metres, the perception delay in responding to the vehicles ahead of him is approximately 1.2 seconds. This delay could be explained where the driver identified the lead vehicles as potential hazards but not as emergent hazards, as the driver has not recognized the high closing rate.
[415] In summary, 3.4 seconds is when he sees the potential hazard but does not recognize that it is an emergent hazard (that is when the visual expansion is such that one is able to discern the closing rate). Then 2.2 seconds is when driver perceives it is a hazard and has to do something about it. So there is 1.2 second perception delay.
[416] The total distance that Mr. Qureshi would have needed to stop would have been a minimum of 123 metres to a maximum of 145 metres.
(d) Case #4
[417] Mr. Brown described Mr. Qureshi’s statement to Detective Constable Durocher at p. 47 of his report: “The statement was hard to understand, disjointed and not consistent. Information was not clear as to distances, locations and vehicle maneuvers. This makes a qualitative analysis very difficult”.
[418] He assumed that Mr. Qureshi had passed a tractor trailer and then returned to the right lane, that at 10 truck lengths back he saw the westbound collision recovery and that at 7-8 truck lengths back he saw the truck with four-way flashers on (i.e. the International) and assumed that it was stopped.
[419] Mr. Qureshi stated that when he put his signal on to change lanes, two cars passed him and he stayed in the right lane. He then applied the brakes.
[420] Mr. Brown assumed that if each truck length was 21 metres, then at 7-8 truck lengths away, Mr. Qureshi would have been 147-168 metres away from the International
[421] He stated that Mr. Qureshi would have travelled that distance in 5-5.7 seconds. Assuming a PRT as set out above and the visual expansion threshold would be at 3.2 seconds, there would have been an approximate perception delay of 1.8 to 2.5 seconds to this point.
[422] Later in his report, he states that the overall perception delay was 2.9-3.6 seconds. He testified that he cannot explain what Mr. Qureshi might have been doing during this period of time. He speculated that he could have checked his side view mirror to determine if he could make a lane change which could have taken .8 seconds.
Further Explanations
[423] Mr. Brown admitted that Mr. Qureshi would have been sitting higher in the Volvo than a passenger vehicle. Mr. Qureshi would have been able to discern that the International was a tractor trailer like his vehicle given its reflective tape on the top corners. He presumed that the reflective tape on the lower bar of the International would not have been visible given that there were three vehicles behind the International.
[424] Mr. Brown admitted the following lighting may have been available to illuminate the area in front of Mr. Qureshi:
There was a well-lit area of the westbound collision recovery;
The four-way flashers of the International could have been visible but he said they could have been obscured by three vehicles behind it;
The taillights and brake lights would have been visible if they were functioning and not dirty;
That lights shine brightly at night but the intensity would depend on the cleanliness of the lights;
The Highway signs on the eastbound lanes were reflective to lights from the vehicles; and
The vehicles ahead would have illuminated the road ahead with their headlights.
[425] He agreed that the highway was a straight roadway and there were no obstructions at 1.73 kilometres away from the collision scene near the on ramp to Prescott.
[426] However, according to Mr. Brown, this does not mean that Mr. Qureshi realized that these were emergent hazards that he needed to react to. He stated that at a distance, it is hard to pick up what is actually occurring but “as you get closer, you see more”.
[427] Mr. Brown confirmed that the eccentricity (angle) was at a 0 factor as Mr. Qureshi was travelling directly behind the vehicles and he would be looking forward.
[428] Referring to his research he said that braking and flashing lights could attract a driver’s attention but even though they know they are closing in on the lead vehicle, the driver does not necessarily address it as an immediate hazard.
[429] In cross-examination, Mr. Brown would not agree with the proposition that the westbound collision recovery would be a point of context if it was static. He indicated that it was not in Mr. Qureshi’s path of travel as you are concerned with what is ahead: “A driver has to appreciate what is happening in front of him”. A driver would not expect eastbound traffic to be stopped because of a collision in the westbound lanes in a divided highway.
[430] In addition, Mr. Qureshi saw vehicles passing and there appears to be free-flowing traffic.
[431] If the Volvo was part of the group of vehicles the collision would not have happened as he would not have had to make the assessment of how fast he was closing in.
[432] Finally, Mr. Brown explained the following:
In his experience as a Constable in a collision recovery scene, clean up lights would be directed toward the area they are trying to clean up, in this case in the northerly direction; they would not put lights facing the eastbound traffic as it would cause a distraction;
The photos of lighting would not portray what Mr. Qureshi would have seen;[^46]
He did admit that there would be residual light and took this into account in his report;
There was no evidence that the Dodge’s brake lights were on; and
Mr. Qureshi did not have enough time to stop.
Crown’s Position
[433] The Crown vigorously submits that the Court should place little weight on Mr. Dalton Brown’s opinion because:
The visual expansion threshold (or looming threshold) does not apply as there were many visual cues ahead of him and Mr. Qureshi admits to seeing the International’s flashing lights at least 7-8 trucks ahead of him;
In his report, he does not have the evidentiary foundation for some of his conclusions, e.g., Mr. Brown took into account the statement of the driver of the International but he did not testify at the trial;
In one of his hypotheses, he assumes that Mr. Qureshi had put his signal on to pass when he realized that he was closing in on the group of vehicles, but there was no evidence that he did this and not one eye witness saw this;
The Crown refers to R. v. Wilby, 2015 ONCJ 840, in which the Court did not accept his evidence as he relied on information that was not in evidence;
The Crown submits that he may be a collision reconstructionist but his expertise in perception reaction time (“PRT”) is recent and learned later in his career;
In an article produced by Mr. Brown, he was not candid with respect to the findings which included comments that more work had to be done in studies and research due to mathematical errors;
He did not seem to understand the concepts put to him regarding an article provided by the Crown;
He struggled to find the input icon on his computer program (IRDD) and seemed unfamiliar with the concept of the non-immediate hazard;
He admitted that he had misinterpreted s. 158(2) of the Highway Traffic Act, R.S.O. 1990, c. H.8, but then he admitted his error. That section reads:
(2) 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. R.S.O. 1990, c. H.8, s. 158 (2); and
- He did not consider the fact that Mr. Qureshi was a professional driver.
Defence Position
[434] The Defence submits that Mr. Brown’s evidence casts a reasonable doubt that Mr. Qureshi’s driving was a marked departure. Given Mr. Brown’s findings on the perception reaction time (PRT) and the Visual Expansion Threshold (or looming threshold) which requires the driver to recognize an immediate hazard at .006 radian/second, Mr. Qureshi did not have enough time to stop and avoid the collision.
[435] As explained by Mr. Brown, the mere presence of brake lights does not mean that vehicles are stopped in the lane and Mr. Qureshi would not realize there was a problem until he was closer.
[436] The Defence submits that it is unreasonable to think that Mr. Qureshi would expect the International to stop in the middle of his lane rather than the shoulder. When Mr. Qureshi perceived the hazard, he braked and steered towards the south shoulder.
[437] Mr. Brown was cooperative, admitted errors (e.g., the Volvo tire), admitted that he was not an expert on fatigue and agreed that he would change his report if new information came to light.
Conclusions regarding Mr. Brown’s opinion evidence
[438] I have carefully considered his evidence and for the reasons that follow, I find that Mr. Brown’s evidence, viewed in the context on its own and in light of all of the evidence, does not leave me with a reasonable doubt as to Mr. Qureshi’s guilt.
[439] That is, I find that the evidence establishes beyond a reasonable doubt that there were enough visual cues ahead of Mr. Qureshi that would alert him to take steps to avoid a hazard ahead.
[440] In fairness, Mr. Brown did review the information provided to him, he made adjustments in some of his calculations that would not benefit Mr. Qureshi, he admitted to errors and he made admissions regarding the collision dynamics as represented by the debris on the roadway. He was polite and responsive to questions in his 8 days of testimony.
[441] However, the following findings diminish the weight of Mr. Brown’s opinion evidence:
He made an error in the identification of tire marks. They were not the front passenger side wheels of the Volvo but the front driver side wheels. However, he said that this does not change his analysis;
He changed his mind regarding the location of the second collision (between the Volvo/Dodge travelling as a unit and contacting the Honda). He admitted under cross-examination that the beginning of the green line which represents the Honda’s path is where the collision took place and is consistent with the markings of the Honda’s deflated driver’s rear wheel;[^47]
He stated that s. 158(2) of the Highway Traffic Act meant that tractor trailers only had to travel 60 metres behind another tractor trailer but later agreed in cross-examination that tractor trailers must maintain this distance from all vehicles;
Mr. Brown admitted that the diagrams in his report that depict the collision dynamics do not line up with the physical evidence taken at the collision scene; and
He assumed that the International was travelling at 15 km/hour in one of his case theories but no witness gave this evidence.
[442] Secondly, his explanation of the visual expansion threshold and the PRT are supported by studies. A Crown witness, Constable Prent, accepted that PRT is relevant and agreed that a range of 1.5 seconds is reasonable.
[443] Nevertheless, and most importantly, I find that the visual expansion threshold as applied by Mr. Brown does not raise a reasonable doubt.
[444] In lay terms, this visual expansion threshold means that there is a point when an object can be easily identifiable so that a driver knows that it is a hazard that requires a response. How visible the object will be also depend on the background including how dark it is, whether there are hydro poles or not, the normal dark sky or relatively flat terrains.
[445] The experts’ evidence at this trial indicated that darkness plays a role but on the other hand, it was agreed that taillights and flashing lights would illuminate more in the dark (subject to the cleanliness of the lights, according to Mr. Brown).
[446] Mr. Brown used the computer program to support his hypothesis that the virtual expansion threshold was applicable and to support his opinion that Mr. Qureshi did not have time to react due to the aforementioned threshold.
[447] Mr. Brown did not first determine if, based on the evidence in this case, whether the virtual expansion threshold was actually applicable as he hypothesized in his report.
[448] In determining the probative value of Mr. Brown’s opinion evidence the Court has concerns with respect to inferences he made and assumptions that were not in evidence. He was not familiar with evidence given at trial and in his report, he relied on statements that were not in evidence, e.g., the statement from the driver of the International.
[449] Mr. Brown was not prepared to accept that there was evidence that demonstrated that there were visual cues ahead that were discernible as hazards. He was not prepared to accept that Mr. Qureshi saw these visual cues or would have seen the visual cues.
[450] According to Mr. Brown, the application of this threshold means that Mr. Qureshi did not appreciate the fact that he was closing in on the International that had its flashing lights on.
[451] I find that as Mr. Qureshi approached the International with his flashers, he would have seen the other three vehicles behind the International who were applying their brakes as evidenced by the brake lights.[^48] Many witnesses saw the International had its four way flashers on and saw the three vehicles behind it applying their brakes.
[452] In his statement, Mr. Qureshi stated that he believed that the International was stopped. Would it not make sense if the International is stopped and he is travelling at 104 km/hour, Mr. Qureshi would realize he would be approaching the International at a fast pace?
[453] In my view, Mr. Qureshi would have or should have appreciated that he was quickly approaching an emergent hazard that required an immediate response.
[454] In his analysis set out in Case #1, Mr. Brown said Mr. Qureshi was just over 90 metres away from the Dodge when the virtual expansion threshold would have been met.
[455] Put another way, according to Mr. Brown, Mr. Qureshi would have only realized that there was a hazard that was closing in on him when he was approximately 90 metres away from that hazard (i.e., less than a football field away).
[456] Based on the measurements provided by the experts above, this was not enough time for Mr. Qureshi to stop his tractor trailer which had been travelling at 104.5 km/hour. In the first scenario, he would have needed 124 metres to stop.[^49]
[457] This theory is not borne out by the evidence. The evidence indicates:
It was a clear night;
Witnesses could see the Volvo at the overpass 1.8 km away;
The westbound collision area was a well-lit area;
There was illumination in front of Mr. Qureshi such as the flashing lights of the International and the brake lights from the three vehicles; and
Mr. Qureshi admits to seeing the visual cues of the flashing lights of the International and the westbound collision recovery.
[458] I accept the witness Mr. Arcand’s evidence that the collision occurred approximately 100 metres away from the westbound collision recovery scene in the eastbound lanes. That means that Mr. Qureshi’s Volvo would have passed the well-lit westbound collision recovery scene.
[459] I accept the witness Mr. Roberts’ evidence that he saw the International with its four-way flashers on and the vehicles behind him braking – all in the eastbound lane.
[460] Next, Mr. Brown inputted the facts in the IDRR software program to obtain the virtual expansion threshold based on certain assumptions. For example, at Exhibit 46, which comprises his notes that form the basis of his report, he inputted that Mr. Qureshi was responding to one object in arriving at the figures in Cases #1-3 in his report. There was no explanation of what object Mr. Brown was referring to. In fact, the evidence indicates that Mr. Qureshi had four vehicles in his lane, the International followed by the Chevrolet, the Honda and the Dodge in that order.
[461] There is conflicting evidence as to whether the vehicles ahead of Mr. Qureshi were slowed down or stopped. Mr. Qureshi said he believed the tractor trailer was stopped as it had his four-way flashers on. A few witnesses support his view that the tractor trailer was stopped. Some witnesses were unsure; some believed that there was a slowdown.
[462] The Defence suggests that the International, the Dodge, the Honda and the Chevrolet were travelling together closely in a group in the sense that they had the benefit of cues from each other. These cues were not available to Mr. Qureshi, who was travelling alone.
[463] There is ample evidence of observations from witnesses of the well-lit westbound recovery area, the four-way flashers of the tractor trailer and the brake lights of the vehicles behind the International.
[464] The evidence of those in the vehicles behind the International was that the International had its four-way flashers on and that they braked as these flashing lights put them on alert and caused them initially to slow down.
[465] I am not left with a reasonable doubt that Mr. Qureshi saw the slowed traffic up ahead and was aware of issues up ahead.
[466] Also, even if the International was considered a non-emergent hazard (as opposed to an emergent hazard requiring immediate urgent action), then some reaction was necessary from Mr. Qureshi. Mr. Brown failed to discuss a non-emergent hazard in his report; which theorizes that a driver’s response is necessary when there is a potential hazard ahead that is not necessarily perceived as an emergent hazard requiring an emergency response.
[467] Mr. Brown was emphatic, despite repeated and rather lengthy cross-examination by the Crown, that four-way flashing lights ahead or brake lights ahead do not necessarily require any reaction from a driver.
[468] He stated that four-way flashers could indicate to proceed with caution but he said that this would not be the case if the flashers were obstructed by the three vehicles.
[469] In response to the simple question of whether it would have been commonsensical for Mr. Qureshi to have slowed down right away when he saw the International slowing down, such as by taking off his cruise control, Mr. Brown answered only if he was aware it was slowing down, how fast he was closing in and how fast the International was going.
[470] When asked if common sense would dictate that Mr. Qureshi would proceed with caution after seeing four-way flashers and that traffic is slowing down, Mr. Brown’s response was that only if the driver sees and identifies an imminent hazard and that it is quickly getting closer.
[471] When questioned about the fact that Mr. Qureshi admitted to seeing the four-way flashers, he minimized this statement and said:
Mr. Qureshi’s statements at his videotaped interview were confusing and unreliable; and
The 7-8 truck lengths were never quantified.
[472] Mr. Brown was asked several times in cross-examination whether the application of the brakes of a lead vehicle would indicate that a vehicle is slowing down. His initial responses bordered on being evasive, as he said that the fact that brake lights have lit up does not necessarily mean a vehicle is slowing down. For example, someone could have accidentally touched the brake or some people drive using both feet when using the brake and accelerator.
[473] However, he did ultimately agree that usually brake lights shining from a vehicle would indicate that it was slowing down, but one does not know the rate at which it is slowing down. He agreed that braking in vehicles ahead tells the driver that the vehicles are slowing down but, depending on the driver’s vantage point, it is not necessarily an emergent hazard.
[474] What he is saying is that a driver of a tractor trailer can take the necessary time to determine if the brake lights and flashing lights ahead of him are real potential hazards. This may mean that the determination occurs only when he is metres away (in Case #1: 90 metres away) and then this does not give him enough time to stop.
[475] There would be innumerable accidents if this type of driving is condoned. A reasonable person viewing the International’s flashing lights and a line of vehicles braking behind it would need to proceed with caution even if they are not quite sure that they are really emergent hazards. These visual cues are potential (non-emergent) hazards. Otherwise, the person will not have time to stop.
[476] In my view, it cannot be that in viewing these visual cues, a driver travelling at 104 km/hour in a tractor trailer will ignore these cues and wait to figure out what is going on before he takes any action – especially, here, where Mr. Qureshi admitted to seeing these cues and told the Detective that he realized that the tractor trailer was stopped.
[477] When explaining the pre-collision events in Case #4, Mr. Brown embarked on a speculative reasoning process. When trying to explain what Mr. Qureshi could have been doing in those seconds of delay before the collision, he suggested that Mr. Qureshi would have been checking his mirror to see if he could pass. As stated previously, no witness saw him put his signal on or saw him attempting to change lanes.
[478] After some time, he did indicate that a collision on the opposite side of the highway could cause the traffic up ahead to slow down.
[479] In summary, regarding Mr. Brown’s evidence, I find that his evidence was not given in a fair and impartial manner. I find:
He assumed the virtual expansion threshold applied and provided his findings based on this theory before reviewing the available evidence to determine if it in fact was applicable in this case as he hypothesized;
He assumed despite visual cues, according to his figures set out in Case #1, that Mr. Qureshi would have only discerned that there was an emergent hazard when he was about 90 metres from the collision site;
In one of his cases he assumed that some of the vehicles were travelling 15 km/hour which is not in evidence;
He inputted “one object that Mr. Qureshi was responding to” in his IDRR computer calculations when Mr. Qureshi had at least four vehicles ahead of him;
He did not explain in his report the significance of non-emergent hazards that would require some response from drivers;
He was not prepared to concede the significance of some of the visual cues that were facing Mr. Qureshi up ahead and that this would require some response by the driver; and
When asked about the westbound collision recovery scene being a distraction, he did finally admit that it could have been a distraction but qualified his response that he would not expect drivers to stop (which is not an unreasonable reflection).
[480] In conclusion, Mr. Brown’s evidence does not in itself and in light of all the other evidence raise a reasonable doubt.
Mens Rea Discussion
Introduction
[481] I must distinguish between civil negligence and penal negligence by applying the modified objective test which means that while the reasonable person is placed in the circumstances of the accused, evidence of the accused’s personal attributes (such as age, experience and education) are irrelevant unless they go to the incapacity of the accused to appreciate the risk: see Hundal; Beatty; and Roy.
[482] The two questions I must ask are:
In light of all the relevant evidence, would a reasonable person have foreseen the risk and taken steps to avoid it if possible?
If so, was the accused’s failure to foresee the risk and take steps to avoid it, if possible, a marked departure from the standard of care expected of a reasonable person in the circumstances of the accused?
[483] I find beyond a reasonable doubt that the visual cues ahead of Mr. Qureshi were sufficient
for him to have taken some action to avoid the risk.
Mr. Qureshi’s statements
[484] I have determined that that part of Mr. Qureshi’s conversation with Detective Constable Durocher at the outset was free-flowing and conversational and, in my view, Mr. Qureshi understood questions and was able to express himself in the French language in a clear and comprehensible manner. Although phrases or words had to be clarified, in my view Mr. Qureshi understood and was able to express himself in the French language.
[485] In his statement, Mr. Qureshi stated:
That he saw the westbound collision recovery scene from 10 truck lengths away; and
That he saw the tractor trailer with its flashers on at least seven to eight trucks ahead of him but later in his interview he says he saw the tractor trailer with his flashers on 10 or 12 truck lengths behind; and that it was across from the westbound recovery scene and that he felt that it was stopped.
[486] The Court cannot determine beyond a reasonable doubt the exact distance Mr. Qureshi was when he observed the International’s flashing lights. He said 7-8 truck lengths then he stated 10 to 12 truck lengths in his interview. But what the Court finds beyond a reasonable doubt is that that night, Mr. Qureshi did see visual cues ahead of him.
[487] The evidence supports that there were cues up ahead that would have been visible Mr. Qureshi that evening.
[488] Next, there is evidence that there was free-flowing traffic and that vehicles were passing. Ms. Riga was one of the witnesses who indicated that vehicles were passing.
[489] In my view, the fact that other vehicles are in a position to pass and avoid the slowdown in front of the driver does not absolve a driver from proceeding with vigilance and caution when there are visual cues up ahead that there are potential hazards that could become emergent hazards in your lane.
[490] Even if there are vehicles passing and travelling in the passing lane, the traffic indicated by the visual cues requires that something be done.
Professional drivers
[491] Professional drivers are held to a higher standard than the average driver. More is expected.
[492] It is not disputed that Mr. Qureshi had been a trained driver since 2012, that he was hired to drive the Volvo involved in the collision and that he told Detective Constable Durocher that he travelled the 401 twice per week.
[493] In considering the mens rea, I am guided by the principle outlined in the case law that professional truck drivers are required to exercise more care and vigilance, especially when a larger and heavier vehicle is involved: see R. v. Ernst, [2006] A.J. No. 949 (Q.B.), at paras. 7 and 23. In that case, the Court stated that Mr. Ernst as a professional driver should have known that he needed greater time and distance to stop the truck because of its weight.
[494] In R. v. Parkin (2004), 18 M.V.R. (5th) 297 (Ont. S.C.), aff’d (2005), 2005 CanLII 47600 (ON CA), 205 O.A.C. 286 (C.A.), the Superior Court of Justice stated, at paras. 22 and 27:
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.
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.
[495] In R. v. Du Jardin (2009), 82 M.V.R. (5th) 300 (Ont. S.C.), at para. 26, the Court stated:
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.
[496] In R. v. Parmar, [2018] O.J. No. 5645 (C.J.), at paras. 76-77 and 103-104, the Court stated:
Mr. Parmar was the operator of a commercial vehicle for which a higher standard of driving is expected.
Tractor trailers by their sheer size and weight, potentially makes them lethal weapons when driven dangerously.
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.
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).
[497] In R. v. Rai, 2018 ONCA 623, 413 C.R.R. (2d) 37, at para. 31, the Court of Appeal for Ontario stated:
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”.
[498] As stated by Tranmer J. in R. v. Tabanao, 2020 ONSC 3501, 65 M.V.R. (7th) 30, at para. 551:
The cases of Parkin, du Jardin, Parmar and Rai, to which I have referred already, highlight the standard of driving expected of operators of transport trailers. Tractor-trailers have the potential to do great harm. 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. In this case, the long line of vehicles was there to be seen by Mr. Tabanao and was not seen in sufficient time to permit him to take any evasive action whatsoever. I would say that even if Mr. Tabanao was a civilian driver, driving his own personal car for personal reasons, my decision in this case would be the same.
Mens Rea Conclusion
[499] I now address the first question: in light of all the relevant evidence, would a reasonable
person have foreseen the risk and taken steps to avoid it if possible?
[500] I find that in light of all of the evidence, a reasonable person would have foreseen
the risk, including:
The visual cues included the flashing lights on the International which was across from the westbound recovery scene which would provide another cue that there could be a non-emergent hazard that would require some response;
The braking manifested by braking lights of the three vehicles behind the International;
A non-emergent hazard such as the flashing lights would require some response;
Heightened vigilance is required of a driver of a tractor trailer and Mr. Qureshi failed to pay attention to what was ahead of him, failed to slow down, failed to react and failed to take off his cruise control and take control of his speed;
A reasonable person with a clear view and no obstructions would, in seeing the lights ahead of him, take some action to avoid what could become an emergent hazard; and
A reasonable person driving on Highway 401 in a tractor trailer who views brake lights and flashing lights would proceed with caution, such as by releasing the cruise control feature and easing up on the accelerator. Alternatively, a reasonable person, especially a driver of a tractor trailer, would consider activating hazard lights on their own vehicle to slow down to alert vehicles behind them. Changing lanes may be an option.
[501] I find that a reasonable person would have foreseen that doing nothing when approaching a tractor trailer that has its four-way flashers and vehicles braking can create a very real risk of a collision occurring within seconds. The speed at which Mr. Qureshi was travelling resulted in his vehicle moving at a quick pace of 29 metres per second.
[502] The standard against which the conduct must be measured is the conduct expected of the reasonably prudent person in the circumstances. The reasonable person, however, must be put in the circumstances the accused found himself in when the events occurred in order to assess the reasonableness of the conduct.
[503] Mr. Qureshi’s driving on Highway 401 at the time of the collision was at approximately the posted speed limit. He was driving in the evening on a clear night with good weather; the weather did not require him to proceed at a lower limit than the speed limit. That evening there was traffic but no street lighting.
[504] I refer to in the dicta of Charron J. in Beatty that “momentary lapses” in judgment or attention are insufficient to make out the mens rea of this offence.
[505] The Defence asks me to distinguish this case from Tabanao which resulted in a conviction. In that case, the driver did not take any action before the collision, he admitted to being distracted, he had a prior driving incident and there were three kilometres of stop-and-go traffic with numerous signs up ahead about construction. I agree that the facts in Tabanao are different. But dangerous driving cases turn on their own facts.
[506] I address the second question, was the accused’s failure to foresee the risk and take steps to avoid it, if possible, a marked departure from the standard of care expected of a reasonable person in the circumstances of the accused?
[507] I find there was a marked departure, serious enough to merit criminal sanctions as compared to civil liability.
[508] This is not a momentary lapse of attention case.
[509] In Willock, Doherty J.A. held, at para. 31, that while “[t]here can be no doubt that conduct occurring in a two to three second interval can amount to a marked departure … 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”. In Beatty, at para. 48, the Supreme Court of Canada affirmed this holding from Doherty J.A.
[510] With respect to the mens rea or the fault element of the offence, the Crown must show the “how and in what way” the accused’s driving went beyond carelessness and reached the level of a marked departure from the standard of care a reasonable person would show in the same position.
[511] Constable Foster concluded that the westbound recovery collision scene could have been a distraction. Mr. Brown ultimately concluded that the westbound collision recovery scene could be a distraction to drivers which could cause a slowdown but one does not expect someone to stop.
[512] The issue of the westbound recovery and whether it was a distraction and what Mr. Qureshi should have anticipated is not clear cut. Mr. Lettre-Dufresne, who is also a tractor trailer operator and who was behind Mr. Qureshi, said he regularly proceeds with caution when he approaches a collision on the other side of the highway. He anticipates “rubbernecks” and proceeds with caution. However, as discussed above, I have given little weight to his evidence as I did not find it reliable. This may have been the experience of Mr. Lettre-Dufresne, but given the lack of reliability of his evidence and the apparent number of mistakes regarding the collision, I am not prepared to accept his evidence on this point.
[513] Mr. Qureshi said he noticed the westbound collision recovery scene. He noticed the tractor trailer with its four-way flashers. Whether he would have expected traffic to slow down or not, the evidence that night is that there were enough visual cues up ahead of him to put him on notice that he had to take some action in his driving.
[514] The Defence argues that the circumstances occurred rapidly and Mr. Qureshi’s driving did not approach the level of criminality.
[515] I refer to the Supreme Court of Canada’s decision in Chung where Mr. Chung accelerated just before he went to the intersection. The Court said this of this conduct, at para. 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.
[516] In the determination of the mens rea, the Court has considered the totality of the evidence and considered the modified objective test. This is not a momentary inattention case.
[517] Mr. Qureshi’s driving was a marked departure. That is dangerous driving – when you do not respond to cues. Waiting is not an option. You may not need to brake, but you need to do something.
[518] In finding that there was marked departure, I appreciate that;
This slow down and/or stopping on a major highway would have been unexpected;
The collision occurred very quickly;
The first tractor trailer created a hazard on the road by significantly decreasing his speed;
No signage or warnings on the highway indicated that there was a collision in the westbound lanes;
There was an element of surprise for Mr. Qureshi to see the vehicles ahead of him slowed down considerably;
His speed was constant at 104 km/hour within the speed limit at that location;
He was not swerving or needlessly changing lanes;
He was not impaired by drugs or alcohol;
He was not driving erratically prior to the accident; and
His vehicle was in good working order and mechanically fit.
[519] However, based on the totality of the evidence, I find that Mr. Qureshi’s marked departure was as follows:
He failed to take any evasive steps to avoid the collision until .25 seconds before the first collision with the Dodge as by the time he had to realize he had to do something he was too close;
Despite numerous warning signs up ahead, he took absolutely no action when he was first alerted to those warning signs;
Although there were no streetlights, the area of the collision had enough lighting in various forms, including the well-lit westbound recovery and the brake lights up ahead, to have alerted a reasonable driver to proceed with caution;
He failed to de-activate his cruise control, or slow down, when he saw cues ahead;
He did not honk, brake or ease up on the accelerator as he approached what appeared to be a slowdown of traffic;
He did not put on his hazard lights (four-way flashers) or do something to warn others behind him that there was something up ahead; and
Travelling on the 401 which he did twice per week, as per his statement, he would have been familiar that people slow down on this highway: see Tabanao.
[520] This case is more than just carelessness. As a professional driver with five years of experience travelling on a major highway frequented and travelled by numerous vehicles, a reasonable driver who is driving a heavy truck that can be extremely deadly to others on the highway must drive with the standard of care expected of him.
[521] A collision on Highway 401 can be deadly. Mr. Qureshi admitted to Detective Constable Durocher that he travelled on Highway 401 twice per week. He was aware of the ebb and flow of traffic on this major route. He had just gone through a construction zone in Kingston that evening.
[522] He was not giving his full attention to the road ahead of him, and he failed to respond to the visual cues including the flashing red lights on the International in front of him and the brakes lights on the three vehicles. He failed to respond when he saw that the speed of traffic had drastically been reduced in front of him. He took no action.
[523] The marked departure in this case is that drivers on Highway 401, especially tractor trailer drivers, are required to be alert and vigilant. They must interpret the information that they see and process what they see.
[524] In my view, this type of driving meets the marked departure standard as enunciated by the Court of Appeal for Ontario in Ibrahim and by the Supreme Court of Canada in Hundal. He failed to foresee the risk and take steps to avoid it. This was a marked departure of what is expected from a reasonable person in the circumstances.
[525] This may not have called for hard braking which is an emergency measure. If Mr. Qureshi wanted to buy some time to better appreciate the cues up ahead, he could have ended his cruise control, taken his foot off the accelerator or lightly stepped on the brake.
[526] For the foregoing reasons, Mr. Qureshi is found guilty of Dangerous Driving in the deaths of John Keeler and Tiffany Keeler and of three counts of Dangerous Driving Causing Bodily Harm in relation to Lori Kay, Laura Kirby and Robin Riga.
Justice A. Doyle
Date: April 23, 2021
These Written Reasons were read orally onto the record in a virtual courtroom in accordance with the Court’s COVID-19 directions.
Appendix A
COURT FILE NO.: CR-17-1687
DATE: 2021/04/23
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Her Majesty the Queen
v.
Jamil Ahmad Qureshi
BEFORE: Justice A. Doyle
Counsel: Claudette Breault, Counsel for the Crown
Mash Frouhar, Counsel for the Accused
Trial decision
Doyle J.
Released: April 23, 2021
[^1]: Mr. Chris Prent in his report stated that Mr. Qureshi was travelling at 104.9 km/hour. The Defence expert, Dalton Brown, uses 104 km/hour. Nothing turns on these small differences. [^2]: 2000 SCC 38, [2000] 2 S.C.R. 3. [^3]: Exhibit 19. [^4]: Exhibit 20. [^5]: This interview was videotaped and entered as Exhibit 24. [^6]: Exhibits 25, 26, 28, 29, 30, 31 and 32. [^7]: Exhibit 26 (previously Exhibit K). [^8]: One count was withdrawn by the Crown at the commencement of the trial. [^9]: The references here are from Exhibit 26 which is one of the English transcripts from the interview of Mr. Qureshi with Detective Constable Durocher. According to the GPS he was driving to Richmond, not sleeping in Martinsburg, West Virginia. He was driving from 1:30 to 8 a.m. and stopped only for 2 hours. [^10]: Exhibit 26, at p. 105. [^11]: Exhibit 28. [^12]: GPS data indicates that he arrived in Richmond at 6:05 a.m. on November 27, 2017. [^13]: 2014 ONSC 6619. [^14]: Transcript of Jason Foster’s evidence taken on March 6, 2020, at p. 18. [^15]: Diagram #1 of Exhibit 16 shows Evidence Marker A, the point of impact 1: where the Volvo first collided with the Dodge. Also Exhibit 1A, photo 146. [^16]: Exhibit 16, Diagram #1: Marker A indicates the collision of the Volvo and Dodge; Marker B indicates the collision between the Volvo/Dodge and the Honda; Markers C and D are the location of the Honda lens, Marker F is the Volvo front passenger headlight moulding; Marker G is moulding from the Chevrolet; Marker F was from the Dodge driver shaft; Marker I is fluid from the Dodge and the Chevrolet; Marker J was part of the Dodge mirror, Also Photos 10 to 20 on Exhibit 1A show damage to the front driver’s side including the mirror. Photo 496 shows the front driver’s side mirror which was 2 metres high damaged. [^17]: Exhibit 1A, Photo 264 shows the 3 air bags deployed in the Honda. [^18]: Exhibit 16, Diagram 5 shows the Volvo/Dodge/Honda combination hitting the Chevrolet on an offset and the location of the Honda facing west in a northwest direction. [^19]: Exhibit 16, Diagram 6 shows the collision of the Volvo/Dodge/Honda combination with the Chevrolet and the Chevrolet’s resting position hooked under the underride of the International. [^20]: Exhibit 16, Diagram 3 shows the first collision and the path of the Volvo until its resting spot on the south shoulder of the highway. [^21]: 2020 ONSC 3501, 65 M.V.R. (7th) 30. [^22]: Transcript of Jason Foster’s evidence February 8 and 9, 2021, Volume 1, at p. 35. [^23]: Supra, at p. 36. [^24]: Supra, at p. 273. [^25]: Exhibit 45. [^26]: Exhibit 11. [^27]: The Defence says the Dodge’s width was 1.8 metres and the Volvo was 2.23 in width (and 21.7 in length) and therefore not in line. The Honda was 1.96 in width and 5.11 in length. The Chevrolet’s width was 1.67 and length was 3.88. The International was 22 to 33 metres in length. [^28]: Exhibit 1A, Photos 480 and 484, show damage to front of the Volvo which, according to Mr. Brown, shows more damage on the driver’s side of the bumper and that some of the tears on the fibre was residual damage. [^29]: Exhibit 1A, Photo 145. [^30]: Exhibit 1A, Photo 309 shows damage to the back of the Honda which according to the defence expert shows more damage to the right passenger rear end and agrees that the Dodge went into the Honda; Constable Foster states the Dodge hit the Honda square on. [^31]: Exhibit 1A, Photo 276 shows damage on front passenger front side of the Honda and transfer of blue paint from licence plate of the Chevrolet. [^32]: Exhibit 1A, Photo 213 – green cones show the path of the Honda hitting the jersey wall and bouncing off and coming to rest in the north shoulder of the highway facing west; Photo 313 shows damage to the rear passenger side of the Honda. [^33]: Exhibit 16, Diagram 4 shows where the Dodge hit the International. [^34]: Transcript of Jason Foster of March 11, 2020, at p. 7: “Of interest was the damage profile on the front of the Volvo. When looking at the push-bar, the damage was relatively uniform and centred. Based on this uniform damage, I determined that the Volvo struck the Dodge in what I would describe as an in-line collision. I’ve spoken earlier about offset positioning. It’s my opinion that there was no offset, no noticeable offset in the Dodge and Volvo’s positioning in the right lane”. [^35]: March 11, 2020 transcript, at p. 34, and March 10, 2020 transcript, at p. 63. [^36]: Photo 148 in the report found in Exhibit 1A. [^37]: Photo 160 of Exhibit 1A. [^38]: Exhibit 37. [^39]: Used Exhibit 16, Diagram 1 as the background. [^40]: This is in contrast to Constable Foster who stated that according to the view of the rear crush of the back of the Honda, “[t]hat forward crush was relatively uniform and appeared to have been applied squarely from the rear. This led me to believe that the Honda was within the right lane when it was struck from behind by the front of the Dodge. At the time, the Dodge was being propelled by the Volvo tractor- trailer”: supra, at pp. 21-22. [^41]: Photo 482 of Exhibit 1A. [^42]: At p. 39. [^43]: Exhibit 48. [^44]: Exhibit 38, at p. 38. [^45]: At p. 38 of this report. [^46]: He pointed to Exhibit 7. [^47]: See Photo 151 in Exhibit 1A. [^48]: One witness noted that the Dodge had its four-way flashers on. [^49]: Cases #2 and #3 use the same premises but change the variables, i.e., the speed of the tractor trailer and three vehicles behind it.```