COURT FILE NO.: CR-19-021
DATE: 20210601
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
ROBERT SAUNDERS
Defendant
Monica Heine, for the Crown
Mark Snider, for the Defendant
HEARD: April 19, 20, 21, 26, 27 and 28, 2021
REASONS FOR decision
Beaudoin J.
[1] Robert Saunders is charged with one count of dangerous driving causing bodily harm, contrary to section 249(3) of the Criminal Code of Canada. He is also charged with one count of dangerous driving causing death, contrary to section 249(4) of the Criminal Code of Canada.
[2] These charges arise from the tragic events that occurred during a bicycle ride called “7 days in May” – a fundraiser for pancreatic cancer. During this event, participants were challenged to cycle around Lake Ontario in seven days. This required cyclists to travel approximately 160 kilometers a day and this demanded a high degree of fitness.
[3] Gordon Townley commenced this event in 2012 in memory of his mother. There were approximately 60 cyclists registered for the event in 2018. Many of these were family and friends of the Townley family. The event commenced on May 26, 2018 in Mississauga, Ontario. Participants spent their first night in Coburg, Ontario and were cycling to end their second day in Kingston, Ontario.
[4] The cyclists had taken the Glenora Ferry from Picton and were travelling on the Bath Road that runs close to the shoreline of Lake Ontario. The cyclists rode in small staggered groups. They had nearly reached Kingston when these tragic events occurred.
[5] The lead group of cyclists had pulled off to the side of the road because one of their members hit a pothole, fell from his bicycle and suffered a possible head injury. This group of cyclists was awaiting the arrival of a support van to retrieve the injured cyclist.
[6] While this group was waiting on the side of the road, a small van approached them when, suddenly, the accused’s vehicle came for behind the small van and drove onto the shoulder of the road and collided with the cyclists who were standing there. One of these cyclists, Jeff Vervaeke, ultimately died of the injuries he suffered on that day. While Erin Townley survived, she continues to suffer from the serious injuries she received.
Admissions
[7] The following admissions were entered into the record:
• The Saunders vehicle was mechanically fit;
• No one was impaired;
• There was no issue with photos being introduced through Constable J. C. Prent and Steve Rilett;
• Constable J. C. Prent is an expert in accident reconstruction;
• The jurisdiction, place, and time of the collision are not in dispute;
• The identity of the Accused is admitted;
• Cause of death and injuries are admitted.
• The authenticity of a 1 min. 59 sec. video of the scene was entered as an Exhibit 3.
[8] The Court heard this testimony from the following witnesses.
Peter Cashion
[9] Mr. Cashion became involved in the ride because of a former roommate. He described how the ride started on May 26, 2018. There were 60 plus riders. All the cyclists met to cross on the Glenora Ferry. After disembarking from the ferry, they left in staggered groups. They travelled on the Bath Road. Mr. Cashion’s group rode in single file.
[10] Mr. Cashion was cycling in the second or third group along with Alex Burgoyne and Eric Kunstadt. Just as they exited the town of Bath, he was cycling at 20 km/h. He was riding on the shoulder of the road to the right of the white fog line.
[11] Mr. Cashion then heard the revving sound of a motor vehicle as it drove past him; it was only six inches from the handlebars of his bicycle. He estimated the vehicle’s speed at 90 km/hr.
[12] Mr. Cashion’s bicycle was shifted to the side by the wind created by the passing vehicle. He was in complete shock and anger. He raised his hands and screamed at the driver. He was so angry at this driver who had nearly killed them and who had no reason for being that close; there was no oncoming traffic on a completely quiet road. He observed the vehicle to be a dark gray Nissan.
[13] His group continued to cycle east towards Kingston. Two kilometers later, they came upon a row of cars and saw several cyclists down and bicycles all over. They stopped just beyond the scene.
[14] Mr. Cashion saw the vehicle that had passed them in the ditch on the north side of the road. The injured cyclists were being looked after by others.
Cross-examination
[15] In cross-examination, Mr. Cashion explained that he is an experienced cyclist and has been a triathlete for 24 years. He cycles roughly 2500 to 3000 miles per year. He was in the lead position in his group of cyclists. He was looking ahead.
[16] Mr. Cashion said the cyclists were very close to one another. He said they typically ride between ½ meter and 1 meter apart. They keep close in order to draft off the preceding bicyclist.
[17] Mr. Cashion agreed that since he was in the lead, he assumed the other cyclists were very close. He had a speedometer to calculate his speed.
[18] While he provided an estimate of the speed of the passing vehicle, Mr. Cashion testified that he had become very accustomed to the sound of passing vehicles because of the cadence and rhythm of the bicycle. He confirmed that the vehicle was traveling at a very high rate of speed. He heard the sound of an engine accelerating. It was not a steady engine sound.
[19] Mr. Cashion did not know the speed limit in that area. He could not say for sure that the vehicle swerved at them as was looking ahead. He maintained that the two other cyclists were behind him, they were not riding side by side.
[20] Mr. Cashion believed they were in a more rural area and definitely not in a commercial or residential area.
[21] Mr. Cashion was absolutely certain that the vehicle that passed him was not traveling at 40 kilometers per hour as suggested to him. He said the vehicle was traveling much faster than twice his rate of speed. The speed of this vehicle was far in excess of any vehicle that had passed them before.
[22] Mr. Cashion denied that the driver had honked at them. He denied that the vehicle passed them at a distance of two feet. He also denied that the driver yelled at them to ride in a single file. He did not think to stop and call the police.
[23] In re-examination, Mr. Cashion confirmed that, had the three of them been riding abreast, one of them would have been hit.
Eric Kunstadt
[24] Mr. Kunstadt was the second rider. He said they were riding in a straight line. He was right on Peter Cashion’s wheel and Alex Burgoyne was on his wheel.
[25] Mr. Kunstadt said that they always follow one another closely in order to take advantage of drafting. They always travel in a straight line unless somebody is rotating to take the lead.
[26] As they were leaving the village of Bath, a car passed them at a high rate of speed, and it came within 20 centimeters (approximately 8 inches) from where they were in line. It was unexpected. Mr. Kunstadt reacted in surprise and he felt the wind of the vehicle as it passed them. No one fell off their bike
[27] Mr. Kunstadt testified that they were cycling on the road in the right lane, approximately two feet into the road, to the left-hand side of the fog line. He heard no words coming from the driver of the vehicle as it passed them.
Cross-examination
[28] Mr. Kunstadt described himself as an experienced cyclist. While, as a cyclist, he experienced cars passing him at a high rate of speed, none of them came as close as the vehicle in question.
[29] Mr. Kunstadt estimated his group’s speed at 20 to 25 km/h. He also did not know the speed limit in that area. He agreed that they were relatively far into the roadway as this made them more visible to cars that were coming behind them and it forces cars to drive more slowly.
[30] Mr. Kunstadt agreed that their position forced the car to go into the opposite lane. He did not know where he was in relation to the village of Bath. He did not recall the surroundings.
[31] Mr. Kunstadt said the passing vehicle was definitely going more than 40 km/h as was suggested to him. He denied that the vehicle honked at them. He denied that they were cycling side by side. He denied the suggestion that the vehicle was two feet away from them.
Alex Bourgoyne
[32] Mr. Bourgoyne was third in line, behind Peter Cashion and Eric Kunstadt. He said they were in a straight line and drafting off each other. He described a dark gray Nissan swerving very close to him. He was cycling on the right side of the fog line; he was still on the paved portion of the road.
[33] Mr. Bourgoyne said they were riding six to 12 inches off of each other’s wheel. He first saw the vehicle when it was within inches of his bicycle. He did not hear a horn. The road was clear.
[34] The vehicle immediately swerved to the left after it came into them. Mr. Bourgoyne said they all yelled at this car. He estimated its speed at 70 km/h. He believed that they were traveling at 30 km/h.
[35] They were all very angry when the vehicle passed them. Mr. Bourgoyne felt the push of air from the vehicle as it passed, and his bicycle was moved by the force of the wind. He observed no reason for the vehicle to come that close.
[36] Mr. Bourgoyne saw the vehicle again at the scene. It was in the ditch, perpendicular to the road. The driver was sitting in the vehicle.
Cross-examination
[37] Mr. Bourgoyne’s evidence was not seriously challenged in cross-examination. He repeated that they rode as far right as they possibly could. He disagreed with the suggestion that they may have ridden 1/3 of the way into the active lane of traffic.
[38] Mr. Bourgoyne was questioned as to how he could tell that the vehicle had swerved at them since he was looking ahead. He replied that he made that observation from the shift in the vehicle as it passed them and swerved out again.
[39] Mr. Bourgoyne recalled that the incident occurred outside of the town of Bath. He strongly disagreed with the suggestion that the passing vehicle was only going 40 km/h. He said that the vehicle did not honk, and the vehicle was not two feet away as it was suggested to him. When asked if he had heard anything from the driver, he said “not a chance - he was going too fast for us to hear anything.”
Fred Roberts
[40] Mr. Roberts is related to the Townleys who organized the event. His group was one of the first ones off the ferry.
[41] Mr. Roberts was riding with Steve Rilett, Jeff Murphy, Shawn Morison, Erin Townley and Kris Henriksen. Steve Rilett and Kris Henriksen were in the lead. The cyclists were riding two abreast. Mr. Roberts was furthest southwest along with Jeff Murphy.
[42] Mr. Roberts said his bicycle was very close to the bikes in front of him, approximately 12 inches. Jeff Murphy was a few feet away.
[43] It was a perfect day to ride. The road was somewhat in rough shape because it was being graded for resurfacing; otherwise it was fine. Jeff Murphy hit a pothole and fell from his bike. He was unconscious for a moment. Steve Rilett looked after him; he is a former fire captain and is skilled in EMS.
[44] The group stopped oncoming traffic. Once Jeff Murphy regained consciousness, they moved him to the side of the road. The bikes were pulled up in an alcove or driveway. The cyclists were all on the side of the road, close to the guardrail. There were large orange and black construction barrels along the guardrail.
[45] A decision had been made to call a support van to come and get Jeff Murphy. Mr. Roberts was at the far west of the group looking for the support van. Erin Townley and Shawn Morison were next to him. Mr. Roberts noticed a van approaching and he thought it was their van. The van appeared to slow down. Mr. Roberts observed a sedan approaching at a high rate of speed behind the van. He noticed that the car was not slowing down; and he thought it was going to hit the van. The car then turned on to the shoulder driving directly towards him.
[46] Mr. Roberts thought he was going to get hit. He pushed himself as far back against the railing as he could. The barrel that was next to him was pushed into his side. He heard Erin scream. He did not hear the squealing of tires. Jeff Vervaeke got hit and was propelled into the air.
[47] The car then hit the guardrail and ricocheted across the road. There was no deceleration. Mr. Roberts observed Jeff Vervaeke face down in a pool of blood. Jeff Murphy had been thrown over the guardrail.
[48] Mr. Roberts and Steve Rilett tried to perform CPR on Jeff Vervaeke. He then tended after Jeff Murphy. Erin was injured and holding her arm.
Cross-examination
[49] Mr. Roberts’ evidence was not significantly challenged in cross examination. He confirmed that, out of everyone, he would have had the best viewpoint of the approaching vehicle.
[50] After Jeff Murphy’s fall, other cyclists had passed them while they were on the side of the road. Jeff Vervaeke was part of the second group that passed by and he decided to stay with them since he was Jeff Murphy’s friend. He became the seventh person in the group standing on the side of the road.
[51] He confirmed that the van that was approaching them appeared to be slowing down. He did not describe it as a dramatic slowing down. Mr. Roberts could not recall if the van was moving away from the lane it was traveling in.
[52] When questioned about his prior police statement as to whether or not the car had any other option than to go into the oncoming traffic lane or hit the van; he responded that there was a third option; which was to brake.
Erin Townley
[53] This was the fourth time she participated in the ride which had been started by her father in 2012. She described herself as a very able athlete at that time. In order to participate in the ride, the cyclists must be able to cycle 160 kilometers a day for seven days.
[54] Ms. Townley said it was a great cycling day. They were in a group of 6 traveling two abreast, three bike lengths long.
[55] Ms. Townley estimated their speed at no less 30 km/h. She did not think they were riding in that tight of a bike formation. Jeff Murphy hit a pothole and fell; as a result, they pulled over to the side of the road while Steve Rilett looked after him. Fred Roberts waved down on coming vehicles and they called for the support van. Another vehicle pulled over and put on its flashers to warn oncoming traffic.
[56] Ms. Townley said they were in a 60 km/h speed zone. They were completely on the side of the road. They had placed their bicycles in an alcove a short distance ahead. Most vehicles slowed down as they passed them.
[57] Jeff Murphy was sitting on the guardrail facing the lake with his back to the road. Ms. Townley was standing behind Jeff. She believed Sean Morison was to her right. Fred Roberts was sitting on a wooden beam of the guardrail. They were talking and laughing. Jeff Vervaeke was behind her; she heard Fred Roberts scream: “What the fuck is he doing?”. She saw a car. She remembered the sound of an impact and everything went black.
[58] When Ms. Townley woke up, she was sitting on the road, holding her right arm. Sean Morison called 911. He was supporting her, and his leg was covered in blood. She looked up and saw Mr. Saunder’s vehicle on the other side of the road.
[59] Ms. Townley’s father arrived at the scene. The ambulance came and she was brought to Kingston General Hospital and she was discharged a week later. She went through a list of her injuries that include, but are not limited to, a traumatic brain injury, abrasion to her forehead, an open fracture of her right forearm, a broken elbow, broken ribs, a traumatic pneumothorax, lacerations and contusions and deep lacerations to her left leg. She suffered from PTSD and she continues to suffer from anxiety and depression. She has scars on her right arm, on her right elbow and from the lacerations on her hamstrings and right knee.
Cross-examination
[60] Ms. Townley said the van that had approached them was slowing down and traveling in a slower speed similar to other vehicles that had passed them. The only anomaly was with Mr. Saunders’ vehicle that was traveling quickly. She estimated that she observed the vehicle for five to ten seconds. She conceded the time was very short.
Kris Henriksen
[61] Mr. Henriksen’s evidence corroborated the evidence of the other witnesses. He described how they were on the side of the road looking after their friend, Jeff Murphy.
[62] Mr. Henriksen was facing Mr. Murphy. Cars passed them while they were on the side of the road and none of these gave them any concern. Other members of their cycling group had passed them, but they moved them on as they did not want any more people than necessary on the side of the road.
[63] Jeff Vervaeke stayed behind because he was Jeff Murphy’s good friend. Everyone was well within the shoulder of the road. Mr. Henriksen was quite close to the guardrail. He was as far south from the road as he could possibly be.
[64] Mr. Henriksen said a minivan slowed down and a vehicle swerved around and came up very quickly towards them. The wind knocked him off his feet. He landed on the guardrail resulting in a bruise and a cut in his armpit. He did not believe he was struck from the vehicle but was pushed by the force of wind as the vehicle passed them.
[65] Jeff Murphy had been blown over the guardrail and Mr. Henriksen went to look after him. He climbed back over the guardrail and noticed Erin was bloodied up. She was crying.
[66] Jeff Vervaeke’s bike was on the road, smashed to pieces. Jeff Vervaeke was lying down on the road. Mr. Henriksen walked up and saw him gasping for air. He had never seen anything like that before. He said EMS arrived very quickly. The vehicle that nearly struck him was across the road. It had bounced off the guardrail and landed on the opposite side of the road.
[67] That evidence was not seriously challenged in cross-examination. Mr. Henriksen said he saw a car coming at them very quickly and that he hardly had any time to react. He could not say if there were any vehicles in the oncoming lane.
Steve Rilett
[68] Mr. Rilett is the retired fireman who provided first aid to Jeff Murphy and attempted to assist Jeff Vervaeke. He did not see the vehicle approach them. He basically confirmed the position of everyone at the scene.
[69] They were well off to the side of the road because in his experience whenever there is a group of people at the side of the road “bad things happen”. It all happened very quickly, in one or two seconds.
Courtney Boomhower
[70] Ms. Boomhower was in the vehicle that was directly in front of the Saunders vehicle. She clarified that it was a Hyundai Santa Fe SUV. It was her vehicle, but her then boyfriend, Dennis Holden, was driving. Her two-year old son was in the back seat. They were going to Kingston. She was very familiar with the road.
[71] The Saunders vehicle first came to her attention as they were entering the town of Bath. This vehicle was directly behind them. The driver of the vehicle appeared to be distracted or trying to intimidate some cyclists. The vehicle kept coming up to the bumper of their vehicle and then backing off. There were many opportunities for this vehicle to pass but it did not.
[72] Ms. Boomhower observed many cyclists on the road, and from her mirror, she saw the Saunders vehicle get very close to them. His actions made her very nervous.
[73] As they left the town of Bath, the Saunders vehicle was one car length behind them. Ms. Boomhower had turned around to look out the rear window of her vehicle. She wanted to make sure he did not hit them because her son was in the back seat.
[74] Their vehicle approached another group of cyclists standing on the side of the road. They moved over to make some room and their car moved slightly over the yellow line. Ms. Boomhower did not see any oncoming traffic. She turned around and observed the Saunders vehicle swerve directly into the cyclists on the side of the road. She estimated its speed at 70 to 75 km/h.
[75] Ms. Boomhower and Mr. Holden pulled over to the side of the road and she called 911. She observed the Saunders vehicle going down the side of the guardrail and then crossing the road. It was still in movement as she was running towards the scene of the accident.
Cross-examination
[76] In cross- examination, Ms. Boomhower confirmed that the Saunders vehicle came to her attention as it was coming up close to their bumper at the same time as they were getting close to the cyclists. The Saunders vehicle had been behind them the entire time. She did not believe that they slowed down as they passed the cyclists; they could have slowed down, but not substantially. They were already going below the speed limit because of the number of cyclists on the road that day.
[77] Ms. Boomhower described the driving of the Saunders vehicle as “not appropriate”. She said at one time they tried to pull over to let him pass but he did not do so. She repeated that Mr. Saunders’ vehicle came very close to theirs. She said it was probably four to five feet behind them at the time of the accident. He came up very quickly.
[78] Ms. Boomhower could not say that the driver of the Saunders vehicle had been earlier trying to intimidate other cyclists, but she said his driving was not normal.
[79] One of the bicycles that was struck almost hit them when it flew into the air because the car was going so fast. Ms. Boomhower observed another vehicle in the oncoming lane. She concluded that the vehicle in the oncoming lane was far away because it only passed them after they had pulled over, but she was not 100% sure.
[80] In re-examination, Ms. Boomhower confirmed that she was watching the Saunders vehicle because she was concerned about her son’s safety who was sitting in the back seat.
Denis Holden
[81] Mr. Holden was driving the Santa Fe. He saw the Saunders vehicle swerve towards the cyclists as they were driving through the town of Bath. He said there were quite a few cyclists because there was a big bike tour.
[82] Mr. Holden had looked up into his rearview mirror. He could see this vehicle creeping up on them and then backing off repeatedly.
[83] The Saunders vehicle followed them as they came up to a group of cyclists on the side of the road.
[84] As Mr. Holden was passing the cyclists at the side of the road, he moved toward the yellow centre line. He believed this would have given the vehicle behind him a clear view of the cyclists at the side of the road. There was no vehicle in the oncoming lane at that moment. He kept his vehicle at the same speed.
[85] Mr. Holden testified that he had seen the vehicle come close to cyclists three or four more times before the collision. This would have happened while they were still traveling through the town of Bath. It caught his attention.
[86] As for the road conditions that day, he said that the cyclists were visible from at least 50 yards; “you could see them as plain as day.”
Cross-examination
[87] In cross-examination, Mr. Holden admitted that the swerving of the vehicle towards the cyclists was first brought to his attention by his passenger. He then saw it himself a couple of times. He was traveling at about 55 km/h as he passed the cyclists on the side of the road. He maintained that he did not slow down until after the vehicle hit the cyclists. He then immediately pulled over.
[88] Mr. Holden confirmed that he was maybe one tire width into the oncoming lane. The Saunders vehicle was ten feet behind him; quite close. It was pulling up behind him and was riding his bumper.
[89] Mr. Holden confirmed that there was a car in the oncoming lane. He said it was a “ways” down the road but passed them at the same time as the collision. He testified that the Saunders vehicle would have collided with the vehicle in the oncoming lane if it had chosen to pass them.
Constable J. C. Prent
[90] Constable Prent went through his Accident Reconstruction Report. He determined the following:
• The collision occurred on Bath Road, east of Jim Snow Drive, in Loyalist Township, East Region. The speed limit on this section of highway was ordinarily posted at 80 km/h but was temporarily posted at 60 km/h due to ongoing road construction in this area. Bath Road at this location consisted of two lanes paved with asphalt which were in good repair, with one eastbound and one westbound lane.
• The road at the collision scene was straight, level, and the pavement was dry at the time of the collision. The eastbound and westbound lanes were separated by two solid yellow lines.
• White fog lines marked the outer lanes at the edge of the pavement. A narrow, paved shoulder was bordered by a narrow-packed gravel shoulder.
• A metal guide rail system marked the south edge of the shoulder. Orange construction barrels were placed at intervals along the south edge of pavement and metal guide rail due to pending road construction.
• The website for Environment Canada (Kingston observations) reported mainly clear skies with a temperature of 20° Celsius. This collision occurred at approximately 3:32 p.m. under daylight conditions and a mainly clear sky.
• The Nissan vehicle operated by Mr. Saunders was equipped with an Airbag Control Module that was supported by Bosch Crash Data Retrieval software for imaging.
• The primary function of the airbag control module is to regulate the deployment of supplementary restraint systems. A secondary function of the module is to record certain crash data that can assist in the development of automotive safety systems and collision investigation.
• This was a non-deployment event; during which no Supplementary Restraint Device (air bags) had been deployed.
[91] The Pre-Crash Data recorded the following:
• At five seconds (-5.0) pre-crash, (where the vehicle it the guardrail) the vehicle was travelling at 77 km/h. There was no brake application and steering input was -2.5 degrees, or relatively straight.
• At -4.5 seconds the vehicle speed and driver inputs remained the same.
• At -4.0 seconds the vehicle speed increased to 78 km/h, the accelerator was depressed at 57 percent, and the steering wheel was turned 65 degrees to the left.
• At -3.5 seconds the accelerator pedal was fully depressed to 100%. The vehicle speed decreased to 70 km/h while the engine speed increased to 3800 RPM. Steering input was -15 degrees to the right.
• At -3.0 seconds (the point of impact with the cyclists) the vehicle and engine speed increased with 100% accelerator pedal application. Steering input was at zero degrees, or straight.
• At -2.5 seconds the vehicle and engine speed continued to increase with 100% accelerator pedal application. Steering input changed to -95 degrees to the right.
• At -2.0 seconds the vehicle speed reached 78 km/h. The accelerator was fully released (100%) with no brake application. Steering input was -30 degrees to the right.
• At -1.5 seconds, the brakes were applied, and vehicle speed had decreased to 57 km/h. Steering input was -100 degrees to the right.
• At -1.0 seconds the brakes continued to be applied and the vehicle speed was 50 km/h. Steering input was -172.5 degrees to the right.
• At -0.5 seconds the brakes continued to be applied and the vehicle speed was 42 km/h. The steering wheel input was -55 degrees to the right.
• At time zero, (the impact with the guardrail) the brakes were “On” and the vehicle speed was 41 km/h. The steering input was 2.5 degrees to the left.
Speed Analysis Measured Distances:
• The distance between the start of the first tire mark on the eastbound shoulder to impact with the guide rail was approximately 77.10 metres.
• The first tire mark on the shoulder was approximately 16.32 metres long. The distance between the end of the first tire mark to the point where the white towel was located on the eastbound shoulder was approximately 6.53 metres.
• The distance between the black scuff marks in the eastbound lane near the end of the first tire mark to the point where hair and skin tissue were smeared onto the eastbound lane was approximately 18.58 metres.
• The distance between the point where the above smear was located to where a pool of blood, towel and scarf were located was approximately 12.55 metres.
• The total distance travelled by the cyclist, from the area where the cyclist was struck, to final rest was approximately 31.30 metres (18.58 +12.55 = 31.30).
• A minimum line of sight distance of 325 metres was measured.
[92] He arrived at the following conclusions based on the physical evidence at the scene and other evidence gathered during his investigation:
The Nissan approached the collision scene on Bath Road in an eastbound direction. Based on the electronic data from the airbag control module, the vehicle at this moment was travelling at approximately 77 km/h.
The right side of the Nissan, approximately half of the vehicle’s width, entered the eastbound shoulder prior to reaching a group of stationary cyclists situated near the guide rail.
The front of the Nissan, to the right of the licence plate, made inline contact with a male cyclist and his Giant Defy bicycle. The cyclist came into contact with the right side of the Nissan’s hood and windshield.
At impact, the cyclist’s centre of mass height was above the Nissan’s leading-edge height. This caused the cyclist to be carried some distance on the Nissan’s front end. The cyclist became airborne as horizontal speed was lost, fell to the ground and slid to final rest. The calculated throw speed of the cyclist ranged between 60 and 72 km/h.
The right front fender of the Nissan came into contact with a second female cyclist. The female cyclist came into further contact with the Nissan’s right-side mirror, right front, and right rear door. The female cyclist came to final rest to the right of the vehicle’s path of travel.
The Nissan returned to the eastbound lane towards the centre line due to a left steering input by the driver. The left side of the Nissan crossed the centre line before the Nissan began to veer back towards the eastbound shoulder due to right steering input by the driver. The driver applied the vehicle’s brakes to the Nissan at this point.
The Nissan collided with the metal guide rail at the edge of the eastbound shoulder with sufficient force to trigger the recording of electronic data in the airbag control module.
The Nissan was redirected across both lanes of traffic and entered the westbound drainage ditch where the vehicle came to final rest.
Robert Saunders
[93] Mr. Saunders testified that he had been camping the night before with his mother and friends. He is a repair technician. He got a call for a contract job. He was to meet somebody in Kingston.
[94] Mr. Saunders described his route that day. He was driving his mother’s Nissan automobile. It was a beautiful day. He was very familiar with the road as he had traveled it for 35 years.
[95] Mr. Saunders was coming down Hwy 8 which is perpendicular to Bath road (or Hwy 33). He said the speed limit was 60 km/h. The speed limit then increases to 80 km/h then drops to 60 km/h and then it reduces to 50 km/h in the town of Bath.
[96] As he entered the town of Bath, Mr. Saunders did not recall seeing any cyclists. He could not recall any vehicle ahead of him. He claimed that he was going 45 km to 50 km/h as he entered the town. He said there is a flashing speed limit sign. He said he stopped at the Macs Milk for ten to 15 minutes at around 2:30 to purchase a snack before his meeting in Kingston. He exited the parking lot and turned left traveling East towards Kingston.
[97] Mr. Saunders said he saw three cyclists about 50 feet ahead of him. There were three cyclists. He described the second cyclist as being a couple of feet in the road. Mr. Saunders said that three cyclists were close together. The first one was on the shoulder of the road; the second cyclist was two feet or so on the road and the third cyclist was drafting behind the second, although he could not say where it was on the roadway.
[98] He claimed he was going 45 km/h at that time. He testified that he gave the cyclists two feet and that he had to go over the centre line to pass them. He honked at the cyclists because they were in the vehicle lane and he said it was unsafe there. He described Bath Road as a very bad road. He honked at them so that he could pass safely. He yelled at the cyclists to move over as it was not safe for them.
[99] Mr. Saunders could not recall any other vehicles around them, and he did not look behind. There were no cars ahead of him. He claimed that he only became aware of the Santa Fe vehicle just as he came upon it. When asked how far he was from the Santa Fe when he first saw it, he did not answer the question; just that he was coming upon it quickly.
[100] He was driving at 80 km/h which was believed was the speed limit. The Santa Fe seemed to be slowing down or stopping. He did not recall passing by any other cyclists. He estimated that he became aware of the Santa Fe about ten to 15 seconds before the collision. It appeared to be slowing down too quickly. He observed a car in the oncoming lane. He then took to the right to go around the Santa Fe because it was slowing down even quicker and that’s where the cyclists were, on the shoulder.
[101] Mr. Saunders estimated he was doing about 80 km/h before he took the shoulder, but he might have slowed down to 75. He claims that he never saw anything on the side of the road, and that he could not see through the back window of the Santa Fe. He did not recall striking the cyclists. He only remembers veering to the right. His next memory was having an ambulance attendant trying to place a collar on him.
[102] Mr. Saunders said he moved to the right because he did not want to rear end the vehicle ahead of him. He knew there was a fairly large shoulder. He knew that there was an oncoming car that was close enough that he could not pass it in time.
[103] Mr. Saunders estimated that the car ahead of him was going 35 to 45 km/h, not very fast. It seemed to be slowing down further.
[104] Mr. Saunders claimed he had no memory of applying the brakes. This is when his memory went blank. He said that even if he had hammered on the brakes, he still would have hit the car ahead. He had no time to hit the brakes because the vehicle was so close to him.
[105] Mr. Saunders observed no construction equipment from the town of Bath to where the accident occurred. He did not notice any orange and black barrels alongside of the road.
[106] Mr. Saunders denied swerving towards any cyclists on that day. He said that if he had seen the cyclists on the side of the road before the collision, he would have driven into the guardrail to avoid hitting them. He would have applied the brakes as much as possible. He denied tailgating the Santa Fe. He said he came up behind the vehicle ahead of him by two car lengths. He then said he just came up behind the vehicle as he passed the Jim Snow Rd.
Cross-examination
[107] Mr. Saunders admitted that he was driving his mother’s vehicle and he did not have permission to use it; and that he was specifically excluded from driving it.
[108] Mr. Saunders admitted that he himself is a cyclist. He described the Bath road as dangerous since it is full of potholes, washouts and it is very bumpy and narrow. At some locations, the shoulders are missing. He said it was safer for cyclists to be riding on the road unless there is a vehicle coming up behind them.
[109] Mr. Saunders measured the distance from the town of Bath to the accident and said it was 4.3 km.
[110] Mr. Saunders did not remember seeing any cyclists as he entered the town of Bath before he passed through. He agreed that there could have more cyclists and that he just did not see them. He said there were no other vehicles ahead of him. When pressed, he admitted that he had no recollection of observing the flashing speed limit sign that day.
[111] Mr. Saunders did not see the construction barrels before the collision. He claims that there were no posted construction signs reducing the speed to 60 km/h and he was going 80 km/h. He admitted that it was possible that the speed/construction signs were there but said that he paid more attention to his speed than to construction barrels or to cyclists on the side of the road.
[112] Mr. Saunders did not recognize any of the cyclists he passed while exiting the town of Bath. He could not say if they were the same cyclists that had testified at trial. He admitted it could have been a different group that he yelled at.
[113] Mr. Saunders said he would keep a constant eye on his speed limit because “that was the law”. When asked about coming up behind the Santa Fe, he said he was travelling at 80 km/h. The space between him and the vehicle ahead was getting lesser and lesser because the Santa Fe was not going the speed limit.
[114] When it was pointed out that the Accident Reconstruction Report revealed no sign of braking on his part five seconds before the crash, Mr. Saunders replied that he had ten to 15 seconds to slow down.
[115] For the first time, Mr. Saunders testified that he saw the Santa Fe’s brake lights flash a couple of times. He then changed his evidence to say that at about ten seconds before the accident, the Santa Fe was slowing down rapidly. He nevertheless estimated its speed at 55 km/h.
[116] From his experience, Mr. Saunders testified most people keep a steady speed at that location and drive between 55 km to 60 km/h in what is otherwise an 80 km/h speed zone because there is a park nearby.
[117] When it was pointed out that the Santa Fe was then driving like most other vehicles in that area, Mr. Saunders tried to back away from his answer by saying that most drivers reduce their speed at another area, just further ahead and closer to the park. He said he would have reduced his speed if “I got there”.
[118] Mr. Saunders did not see the barrels and he said that there was no reason for him not to go the speed limit. He was questioned about braking. At first, he said he took his foot off the gas. When it was pointed out that the Accident Reconstruction Report revealed that his accelerator pedal was pressed to 100%, he disputed the Report’s findings. He then said that he took his foot off the gas just as he passed the Jim Snow Road, before he could even see the Santa Fe.
[119] At first, Mr. Saunders saw no reason to apply the brakes as he approached the Santa Fe. He said that five seconds was very fast, and he made a snap decision to pass the vehicle on the right.
[120] Mr. Saunders did not see anything, not the cyclists nor the barrels although he could see a vehicle coming around a bend in the oncoming lane. He did not answer why he did not apply the brakes when it was put to him that:
• he had time see the Santa Fe’s break lights flash twice;
• he had time to observe the distance between himself and the Santa Fe decrease rapidly;
• he had time to veer into the other lane, to see the other oncoming car, and assess its speed;
• he had time to then come back into the right lane, and then swerve on to the shoulder before he applied the brakes.
[121] Mr. Saunders then said that he did apply his brakes at one time when he went drove past the Jim Snow turn, but not afterwards. He then said he applied his brakes when he was three car lengths behind the Santa Fe vehicle, but then corrected himself to say that it was when he was right up behind it.
[122] Mr. Saunders admitted that it was possible that he had been tailgating the Santa Fe vehicle since the Jim Snow turn and at other times. He then said he did not recall if the Santa Fe vehicle was ahead of him when they were in the 60 km/h zone and that it was quite a way ahead. He then admitted it was possible that it was there as he left the town of Bath but then said he had no recollection of it before.
[123] It was put to him that the minimum sight line as he approached the scene was 325 meters. Mr. Saunders disagreed. When it was put to him that, if he had not been tailgating the Santa Fe, he would have seen the cyclists at the side of the road, he had no answer.
The Applicable Law
[124] The former section 249(1) of the Criminal Code which was in force at the time of these events read as follows:
249 (1) Everyone commits an offence who operates
(a) a motor vehicle in a manner that is dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place;
[125] In R. v. Beatty, 2008 SCC 5, [2008] 1 S.C.R. 49, in discussing the offence of dangerous driving, the Supreme Court drew the distinction between civil negligence and criminal negligence. In that case, Mr. Beatty’s pick-up truck, for no apparent reason, suddenly crossed the solid centre line into the path of an oncoming motor vehicle, killing all three occupants. The question was whether this momentary act of negligence was sufficient to constitute a dangerous operation of a motor vehicle causing death within the meaning of the Criminal Code.
[126] At para.43, the Court concluded as follows:
…(a) The Actus Reus
The trier of fact must be satisfied beyond a reasonable doubt that, viewed objectively, the accused was, in the words of the section, driving in a manner that was “dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place”.
(b) The Mens Rea
The trier of fact must also be satisfied beyond a reasonable doubt that the accused’s objectively dangerous conduct was accompanied by the required mens rea. In making the objective assessment, the trier of fact should be satisfied on the basis of all the evidence, including evidence about the accused’s actual state of mind, if any, that the conduct amounted to a marked departure from the standard of care that a reasonable person would observe in the accused’s circumstances. Moreover, if an explanation is offered by the accused, then in order to convict, the trier of fact must be satisfied that a reasonable person in similar circumstances ought to have been aware of the risk and of the danger involved in the conduct manifested by the accused.
[127] The court went on to emphasize at para. 46:
46 As the words of the provision make plain, it is the manner in which the motor vehicle was operated that is at issue, not the consequence of the driving. The consequence, as here where death was caused, may make the offence a more serious one under s. 249(4), but it has no bearing on the question whether the offence of dangerous operation of a motor vehicle has been made out or not. Again, this is also an important distinction. If the focus is improperly placed on the consequence, it almost begs the question to then ask whether an act that killed someone was dangerous. The court must not leap to its conclusion about the manner of driving based on the consequence. There must be a meaningful inquiry into the manner of driving. The consequence, of course, may assist in assessing the risk involved, but it does not answer the question whether or not the vehicle was operated in a manner dangerous to the public.
[128] The Court concluded at para. 67:
67 I therefore conclude that the correct statement of the law is as follows:
The actus reus requires a marked departure from the normal manner of driving.
The mens rea is generally inferred from the marked departure in the nature of driving. Based on the finding of a marked departure, it is inferred that the accused lacked the requisite mental state of care of a reasonable person.
While generally the mens rea is inferred from the act constituting a marked departure committed by the accused, the evidence in a particular case may negate or cast a reasonable doubt on this inference.
[129] In that case, the Court concluded that evidence of a momentary lapse of attention was insufficient to make out an offence of dangerous driving.
[130] The Supreme Court revisited the issue in R. v. Roy, 2012 SCC 26, [2012] 2 S.C.R. 60 where Mr. Roy was driving home from work with a passenger. Visibility was limited due to fog and the unpaved back road they were on was relatively steep, snow‑covered, and slippery. The driver of an oncoming tractor‑trailer testified that Mr. Roy had stopped before proceeding onto the highway, then drove onto the highway and into the tractor‑trailer’s path. In the resulting collision, the passenger was killed. Mr. Roy survived, but the collision left him with no memory of either its circumstances or of the surrounding events. He was convicted of dangerous driving causing death. The conviction was upheld on appeal.
[131] On a successful appeal of his conviction, the Supreme Court turned to Beatty and stressed the importance of a “meaningful inquiry into the manner of driving”.[^1] In analyzing the mens rea requirement, Justice Cromwell said this at para. 36:
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.
[132] He went on the conclude that proof of the “marked departure” fault element can be determined as follows at paras. 39 and 41:
39 Determining whether the required objective fault element has been proved will generally be a matter of drawing inferences from all of the circumstances. As Charron J. put it, the trier of fact must examine all of the evidence, including any evidence about the accused’s actual state of mind.
41 In other words, the question is whether the manner of driving which is a marked departure from the norm viewed in all of the circumstances, supports the inference that the driving was the result of a marked departure from the standard of care that a reasonable person in the same circumstances would have exhibited.
[133] Justice Cromwell examined the manner of driving leading up to the moment that the Roy vehicle pulled into the path of oncoming traffic and noted that: “there was no evidence that the driving leading up to pulling into the path of oncoming traffic was other than normal and prudent driving. The focus, therefore, is on the momentary decision to pull onto the highway when it was not safe to do so.” In acquitting the accused, he concluded: “In my view, the appellant’s decision to pull onto the highway is consistent with simple misjudgment of speed and distance in difficult conditions and poor visibility. The record here discloses a single and momentary error in judgment with tragic consequences.”
[134] In R. v. Chung, 2020 SCC 8, [2020] SCC 8, 386 C.C.C. (3d) 523, the Supreme Court recently reviewed the law in this area. In that case, Mr. Chung drove his vehicle at almost three times the speed limit towards a major intersection in Vancouver and crashed into a left-turning vehicle. The driver of the left-turning vehicle died at the scene.
[135] The trial judge found that Mr. Chung’s excessive speeding over a short distance towards this major intersection was objectively dangerous to the public and that the actus reus of dangerous driving was established. However, the trial judge acquitted Mr. Chung because he had reasonable doubt that Mr. Chung’s conduct met the mens rea requirement for dangerous driving. The trial emphasized that the momentariness of Mr. Chung’s speeding was critical in finding that his conduct did not show criminal fault. The B.C. court of appeal overturned the acquittal and entered a conviction.
[136] In dismissing a further appeal by Mr. Chung, Justice Martin said this at para 23:
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.
[137] Justice Martin added at paras. 26 and 27:
26 Had the trial judge turned to consider the circumstances of this case fully and specifically, he would have addressed the fact that Mr. Chung’s conduct did not only include momentary excessive speeding, but also narrowly missing another vehicle turning right in front of him, passing in the curb lane, and accelerating towards a major intersection while aware of at least two vehicles in the intersection. The trial judge found that Mr. Chung was not inattentive while driving but did not consider how Mr. Chung’s awareness of his surroundings contributed to his conduct being a marked departure from the conduct of a reasonable person. A full analysis in this case would have considered the duration of the speeding, as well as the accused’s control of the car (he switched lanes and then accelerated), the magnitude of speeding (almost three times the speed limit), the location of speeding (approaching a major intersection), and the accused’s awareness of at least two vehicles at the intersection as he approached it. The trial judge then had to consider whether, on these facts as found, a reasonable person would have foreseen the risk of endangering the public by engaging in this conduct and taken steps to avoid it, presumably by not driving so fast.
27 The duration and nature of the accused’s conduct are only some of the factors to be considered with all of the circumstances in the mens rea analysis. They are not factors that can be taken out of context … Courts must be careful to avoid fettering the analysis in Roy by adopting hard and fast rules regarding when isolated factors will or will not be marked departures. Although case law may be helpful in providing examples of what has previously been determined to be a marked departure, courts must still analyze the accused’s actions relative to the reasonable person in the specific circumstances at issue. (Emphasis added)
[138] There are also relevant provisions of the Highway Traffic Act RSO 1990, c. H.8, that are applicable in this case.
Section 148 Overtaking and passing rules
(6.1) Every person in charge of a motor vehicle on a highway who is overtaking a person travelling on a bicycle shall, as nearly as may be practicable, leave a distance of not less than one metre between the bicycle and the motor vehicle and shall maintain that distance until safely past the bicycle.
(6.2) The one metre distance required by subsection (6.1) refers to the distance between the extreme right side of the motor vehicle and the extreme left side of the bicycle, including all projections and attachments.
Headway of motor vehicles, generally
158 (1) The driver of a motor vehicle or streetcar shall not follow another vehicle or streetcar more closely than is reasonable and prudent having due regard for the speed of the vehicle and the traffic on and the conditions of the highway.
The Position of the Defence
[139] The defence acknowledges the tragic consequences of that day. Mr. Snider further concedes that if this Court is satisfied beyond a reasonable doubt that Saunders’ decision to take the shoulder prior to striking the cyclists constituted dangerous driving, then both counts would be made out. He relies on the comments of Justice Cromwell in Roy which are cited earlier in this decision. He argues that the Crown has failed to meet its burden of proof beyond a reasonable doubt
[140] Mr. Snider argues that the first group of cyclists would have been looking ahead and would not have been able to make observations of Mr. Saunders as he approached them. He notes the conflict between the evidence of Mr. Roberts and Mr. Burgoyne and that of Mr. Kunstadt who testified that his bicycle was two feet into the lane of traffic although he concedes that Mr. Kunstadt was legally on the roadway. He notes that none of these cyclists found that Mr. Saunders driving warranted a call to the police. He suggests that all three of these witnesses gave their statements to the police only after they became aware of these tragic events.
[141] Mr. Snider notes that Ms. Boomhower agreed that she might not have as clear a recollection because she was not the driver and that her description of Mr. Saunders’ driving was not consistent with intimidation.
[142] Mr. Snider places emphasis on the evidence of Mr. Roberts, Mr. Henriksen, and Mr. Saunders that the Santa Fe was slowing down as it approached the scene of the accident. He relies on Mr. Holden’s evidence that Mr. Saunders would have collided with an oncoming vehicle if he had attempted to pass on the left.
[143] Mr. Snider urges me to accept Mr. Saunders’ evidence that the Santa Fe slowed down quickly and as he could not see any one on the shoulder; it was prudent for him to move to the right. There was no time to brake and even if Mr. Saunders had applied his brakes, he would have struck the Santa Fe from behind. He relies on Mr. Saunders’ evidence that he had taken his foot off the gas pedal and that the Accident Reconstruction Report refers to his vehicle operating at a reduced throttle at five seconds before the collision as proof that he was slowing down.
[144] Mr. Snider notes that this was a matter of seconds and that Mr. Saunders had to make a snap decision to avoid a collision. He argues that this was a split-second decision, an issue of momentary inattention that should not attract criminal consequences. He relies on the fact that the speed limit was normally 80 km/h and that the video of the scene displayed no signage reducing it to 60 Km/h. He submits that Mr. Saunders’ decision to take the shoulder cannot objectively constitute dangerous driving in these circumstances.
[145] Finally, Mr. Snider relies on R. v. W. (D.) 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742. He submits that if I accept Mr. Saunders’ evidence I must acquit as this was a moment of carelessness or inattention. Even if I do not accept all of Mr. Saunders’ evidence, Mr. Snider argues that it raises a reasonable doubt. Even if Mr. Saunders’ evidence does not leave me with a reasonable doubt, he submits that the Crown has failed to prove all of the essential elements of the offence beyond a reasonable doubt.
Position of the Crown
[146] The Crown asks that I reject Mr. Saunders’ evidence as a facile attempt to avoid liability for his actions and that there is a paucity of believable evidence that could raise a reasonable doubt. On the third prong of the W. (D.) test, Ms. Heine maintains that the evidence presented at trial does prove essential elements of the charge beyond a reasonable doubt. The Crown witnesses provided reasonable, credible, honest and heartbreaking evidence on the essential elements of the charge.
[147] Ms. Heine notes that the traditional W. (D.) analysis is not always applicable. She refers to the Court of Appeal’s recent decision in R. v. Ibrahim, 2019 ONCA 631, 147 O.R. (3d) 272.
[148] In that case, the Defendant testified and gave an explanation as to how the collision occurred. He described conduct that was suggestive of momentary inattention or carelessness, rather than a marked departure, which is the fault standard for dangerous driving. The trial judge’s instructions to the jury were in issue on appeal.
[149] The Court concluded that the trial judge was “right to conclude that, due to the modified objective nature of liability for dangerous driving, the classic W. (D.) instruction could not be given.” In the end, the Court concluded that a modified instruction must be given since acceptance of the appellant’s evidence “does not lead inexorably to an acquittal.”[^2]
[150] In this case, Ms. Heine relies on the contradictions in Mr. Saunders’ evidence and his admissions that help prove the case for the Crown. While he claimed that he did not see the Santa Fe slow down until seconds before he came up to it, he admitted he saw the Santa Fe in both 60 and 80 km zones, he conceded that the car might have been there as he left the Town of Bath.
[151] Ms. Heine submits that Mr. Saunders’s statement that he did not notice any cyclists but the one group that testified, is not believable. There was clear evidence from all of the Crown’s witnesses that there were 60 cyclists on the road that day.
[152] Ms. Heine submits that it is equally unbelievable that Mr. Saunders did know he was travelling in a construction zone, he did not see the orange and black barrels along the road, and he was unaware of the reduced speed limit.
[153] Ms Heine relies on Mr. Saunders’ admission that he expected that vehicles would slow down in that area because of a park nearby. By his own admission, he was travelling at 30% above the prescribed speed limit. He was travelling in a vehicle that he had no right to use.
[154] Ms. Heine refers to the video clip entered as Exhibit 3 and argues that even if the Court gave every possible credit to Mr. Saunders’ evidence, he had 15 seconds and a distance 325 meters to see the cyclists on the side of the road. She states that this evidence demonstrates more than a momentary lack of attention.
[155] Ms. Heine submits that we have the evidence of the standard of care that a reasonable person would observe in Mr. Saunders’ circumstances. This can be found in the testimony of Denis Holden who was travelling below the speed limit because of the presence of cyclists on the road. He was able to see the cyclists on the side of the road and he moved over to given them room.
[156] Ms. Heine maintains that an examination of the evidence and all of the circumstances, including Mr. Saunders’ own admissions, that it has proven beyond a reasonable doubt that Mr. Saunders’ driving, with all of its tragic consequences, presented a marked departure from the standard of care that a reasonable person would observe in the accused’s circumstances.
[157] Ms. Heine argues that Mr. Saunders wanted to intimidate the cyclists and endangered their lives and drove aggressively for several kilometers, tailgating the Santa Fe, such that Ms. Boomhower was afraid for the safety of her child in the back seat. Ms. Heine states that this pattern of conduct was dangerous and constituted a marked departure from the standard of care expected of a reasonable person in the accused’s circumstances. The results were tragic and catastrophic.
Analysis and Conclusion
[158] Given Mr. Saunders’ testimony, I turn to the guidance on the instruction to be given to a jury set out by the Court of Appeal in Ibrahim with regard to the application of W. (D.) in cases of dangerous driving. This is found at paras. 63 to 65:
63 … 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.
64 It would helpful at this juncture to remind the jury of the elements of dangerous driving, stressing the modified objective nature of liability for this offence, …
65 …the instructions should make it clear that his testimony, whether accepted as true or not, may be capable of raising a reasonable doubt on whether the elements of dangerous driving have been proved beyond a reasonable doubt.
[159] I do not accept the accused’s evidence insofar as he tried to describe a situation where the vehicle ahead of him suddenly slowed down forcing him into a split-second decision to take the shoulder of the road to avoid a collision with an oncoming vehicle in the passing lane or to avoid striking the vehicle in front. This was not a momentary lapse in judgment.
[160] I did not find Mr. Saunders to be a credible witness regarding the key areas of his defence. It must be remembered that he was engaged in a dishonest act that day, driving a vehicle he was specifically forbidden to operate. His answers were vague and unresponsive.
[161] His evidence was successfully challenged in cross-examination where he admitted:
• He did not remember seeing any cyclists as he entered the town of Bath before he passed through. He agreed that there could have been more and that he just did not see them.
• He described the Bath Road as dangerous since it is full of potholes, washouts and it is very bumpy and narrow. At some locations, the shoulders are missing. He said it was safer for cyclists to be riding on the road unless there is a vehicle coming up behind them.
• He admitted to passing the groups cyclists within two feet, which is much closer than the one-meter distance required by the Highway Traffic Act.
• Even though the Kunstadt bicycle was lawfully in his lane of traffic, he honked and yelled at the cyclists to move to some place safe.
• He did not see the construction barrels before the collision that are plainly visible in the video clip entered as an exhibit in this trial. He claims that there were no posted construction signs reducing the speed to 60 km/h and he was going 80 km/h but admitted that it was possible that the signs were there.
• He was travelling at 80 km/h and in excess of the prescribed limit, he faulted the Santa Fe for driving at a lower speed as the reason for his coming up behind it so quickly.
• He testified that most people keep a steady speed at that location and drive between 55 km and 60 km/h in what is otherwise an 80 km/h speed zone because there is a park nearby. When it was pointed out that the Santa Fe was then driving like most other vehicles in that area, he tried to back away from that answer.
• He admitted that it was possible that he had been tailgating the Santa Fe vehicle since the Jim Snow turn and at various times. He then said he did not recall if the Santa Fe vehicle was ahead of him when they were in the 60 km/h zone as the exited the Town of Bath and that it was quite a way ahead, but then admitted it was possible that it was there.
[162] His most troubling answers were to the questions on braking:
• At first, Mr. Saunders saw no reason to apply the brakes as he approached the Santa Fe. He said that five seconds was very fast, and he made a snap decision to pass the vehicle on the right. He earlier said that he had 10 to 15 seconds.
• He had no answer as to why he did not apply the brakes when it was put to him that:
he had time see the Santa Fe touch its break lights twice;
he had time to observe the distance between himself and the Santa Fe rapidly decrease;
he had time to veer into the other lane to see the other car and assess its speed;
he had time to then come back into the right lane, and then swerve on to the shoulder before he applied the brakes.
He then said that he did apply his brakes at one time when he went pass the Jim Snow turn, but not since that time. He then said he applied his brakes when he was three car lengths behind the Santa Fe vehicle, but then corrected that to say that it was when he was right up behind it.
[163] These admissions and answers establish that, by his own evidence, Mr. Saunders demonstrated a marked departure from the standard of care a reasonable person would have observed in his circumstances.
[164] The trilogy of Supreme Court cases cited earlier make it clear that an inquiry into dangerous driving is not limited to the moments just before the event. In Beatty, the Court emphasized: “There must be a meaningful inquiry into the manner of driving.”[^3] In Roy, the Court noted “that there was no evidence that the driving leading up to pulling into the path of oncoming traffic was other than normal and prudent driving.” As the Court noted in Chung, a court has to “consider the circumstance of the case fully and specifically” and “the duration and nature of the accused’s conduct are only some of the factors to be considered with all of the circumstances in the mens rea analysis”.
[165] I am satisfied on all the evidence that Mr. Saunders engaged in a pattern of dangerous driving long before his fatal collision with the cyclists standing at the side of the road. It started as he encountered a group of cyclists before he entered the town on Bath. This is what drew Courtney Boomhower’s attention to his vehicle. She described the driver of the vehicle as appearing “to be distracted or trying to intimidate some cyclists.” While she conceded in cross-examination that she could not say that the driver of the Saunders vehicle was trying to intimidate the cyclists, she nevertheless said that his driving “was not normal”. She could see that he was not keeping the appropriate distance from the cyclists.
[166] Mr. Saunders’s aggressive attitude toward cyclists is revealed in his own testimony where he conceded that it was safer for cyclists to travel on the Bath Road “unless there was a vehicle behind them”. I infer from his answer that he then expected cyclists to get off the road. This inference is supported by his evidence with respect to the three cyclists he encountered when leaving the town of Bath.
[167] Mr. Saunders seized upon Mr. Kunstadt’s evidence that he was some two feet into the road when he passed him. Mr. Saunders seemingly ignores the fact that Mr. Kunstadt’s bicycle was legally entitled to be on that part of the road. His professed honking and yelling at the cyclists betray his belief that Mr. Kunstadt had no right to be there. Although he claimed to be a cyclist himself, Mr. Saunders’ admission that he came within two feet of the cyclists reveals that he passed them much closer than he was required to by law.
[168] Peter Cashion, Eric Kunstadt and Alex Burgoyne were unshaken in their evidence that Mr. Saunders’ vehicle passed within inches of them at an excessive rate of speed. They felt the pressure of the wind on their bicycles. They were shaken and angered by what happened. They believed that they came close to being killed. Mr. Burgoyne observed the swerving motion of the Saunders vehicle as it sped by. Nothing turns on any discrepancy between Mr. Kunstadt’s evidence as to the placement of his bicycle on the road and the evidence of the others. If anything, this shows a lack of collusion on the part of these witnesses. Nothing turns on their failure to stop and call the police.
[169] Ms. Boomhower observed many cyclists on the road, and from her mirror, she saw the Saunders vehicle get very close to them. His actions made her very nervous. Finally, we have the evidence of Mr. Holden who observed Mr. Saunders swerve towards the cyclists three or four times as they travelled through the town of Bath.
[170] Mr. Saunders also displayed an alarming lack of attention to his surroundings. He did not notice any of the other 60 cyclists on the road that day. He did not see the construction signs. He did not notice the large orange and black barrels along the road or the reduced speed signage. Even though Mr. Holden said you could see the cyclists at the side of the road from at least 50 yards away, Mr. Saunders never saw them. Mr. Holden testified that he drove his vehicle towards the yellow centre line while passing the cyclists and that this would have given the Saunders vehicle a clear view of the cyclists at the side of the road. There was no vehicle in the oncoming lane at that moment. Constable Prent’s evidence of a minimum sight line of 325 meters, while disputed by Mr. Saunders, was uncontradicted.
[171] This leads me to a consideration of other aspects of Mr. Saunders’ aggressive driving that day; namely his “tailgating” of the Santa Fe. Ms. Boomhower testified that his vehicle kept coming up to the bumper of their vehicle and then backing off. There were many opportunities for this vehicle to pass but it did not. As they left the town of Bath, the Saunders vehicle was one car length behind them. Ms. Boomhower was watching out the rear window of her vehicle as she was concerned for her two-year old son’s safety in the back seat.
[172] Ms. Boomhower described the driving of the Saunders vehicle as “not appropriate” and how they tried to pull over to let him pass but he did not do so. Mr. Holden testified that he had looked up into his rearview mirror and he could see this vehicle creeping up on them and then backing off repeatedly. Mr. Saunders ultimately conceded that this could have been possible.
[173] I turn now to the evidence of excessive speed. Constable Prent’s evidence that the speed limit was reduced because of the road construction was not contradicted. Even without that evidence, Mr. Saunders admitted that motorists generally drive 55 to 60 km/h at that location. Mr. Saunders admitted travelling at 80 km/h. This is corroborated in the Accident Reconstruction Report. Mr. Holden testified he was driving at a reduced speed because of the presence of many cyclists on the road that day. Mr. Saunders never adjusted his speed having regard to the surrounding circumstances; he was totally unaware of them.
[174] I have already commented on the evidence of a lack of any application of the brakes. Mr. Saunders had an opportunity to apply his bakes and he failed to so. This split-second emergency event was entirely of his own creation. He was driving too fast and he was following the vehicle ahead of him too closely. He could not see the cyclists on the side of the road because he was not attentive to any of his surroundings. He could not see the cyclists though the rear window of the Santa Fe because he was too close to it. They would have been visible to him long before, and at the very least, when the Santa Fe moved over the centre line.
[175] In conclusion, I turn to the test enunciated in Beatty. I find that the Crown has proven beyond a reasonable doubt the actus reus of the offence and that that Mr. Saunders driving that day constituted a marked departure from the normal manner of driving. He endangered other cyclists lawfully on the road and he endangered the occupants of the Santa Fe. He was inattentive to his surroundings. He failed to ever see what was there to be seen. He was driving at an excessive rate of speed. He was following the vehicle ahead him too closely.
[176] In turning to the mens rea of the offence, I conclude that this is a case where the required objective mens rea can be inferred from the fact that Mr. Saunders drove in a manner that constituted a marked departure from the norm. If there is any doubt on this issue, it is resolved by answering the two questions suggested by Justice Cromwell at para. 36 in Roy:
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.
[177] In these proceedings, we have the evidence of the standard of care of a reasonable person and that is found in the evidence of Mr. Holden. He foresaw the risks, when observed the cyclists on the road that day. He had reduced his speed because of their presence. He saw the cyclists at the side of the road and moved over the centre line as an additional precaution. The risks were there to be seen and Mr. Saunders’ lack of attention to his surroundings and his aggressive driving that day prevented him from appreciating and foreseeing the risks he ultimately encountered. This failure to foresee the risks was a marked departure from the standard of care expected of a reasonable person in the accused’s circumstances.
[178] For these reasons, I find the accused Robert Saunders guilty as charged on both counts on the indictment.
Mr. Justice Robert N. Beaudoin
Released: June 01, 2021
COURT FILE NO.: CR-19-021
DATE: 20210601
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
– and –
ROBERT SAUNDERS
Defendant
REASONS FOR decision
Beaudoin J.
Released: June 01, 2021
[^1]: At para. 34 [^2]: At para 47. [^3]: Beatty at para. 46