COURT FILE NO.: CR-20-00000037-0000 (Kingston)
DATE: 20211202
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
ROBBIE O’NEIL
Defendant/Applicant
Elisabeth Foxton, for the Crown/respondent
Jodie Primeau, for the defendant/applicant
HEARD at Kingston: 2 December 2021
MEW J. (ORALLY):
REASONS FOR decision
[1] The defence applies for a directed verdict of an acquittal on the charge against Robbie O’Neil that on or about the 1 September 2017 he operated a motor vehicle in a manner that was dangerous to the public and thereby caused the death of Ross Moulton, contrary to section 249(4) of the Criminal Code of Canada.
Background
[2] The charge against Mr. O’Neil arises from an incident that occurred at approximately 6:52 a.m. on Friday 1 September 2017. A Chevrolet Orlando crossover style SUV operated by Ross Moulton, a Chevrolet Cruze sedan operated by Ryan Donlon and an International Tractor Trailer operated by Mr. O’Neil were all travelling eastbound on Highway 401 in the City of Kingston.
[3] Traffic was being diverted off the highway at the Joyceville Road exit because of a previous accident and was stopped or moving slowly as it approached the diversion. The front of the International struck the rear of the Chevrolet Orlando and the rear of the Chevrolet Cruze. The Chevrolet Orlando was crushed between the concrete median wall and the International. The International came to rest on the left paved shoulder with the Chevrolet Cruze stuck to the front of the International, facing north.
[4] Mr. Moulton, who was the lone occupant of the Chevrolet Orlando was deceased at the scene. Mr. Donlon, who was the lone occupant of the Chevrolet Cruze received minor injuries. Mr. O’Neil was not injured.
Legal Principles
[5] In determining the issue of a directed verdict, a trial judge must ask whether or not there is any evidence upon which a reasonable jury, properly instructed, could return a verdict of guilty: United States v. Shephard, 1976 CanLII 8 (SCC), [1977] 2 SCR 1067, at p. 1080. The test to be applied in determining a directed verdict application is the same test that a judge at a preliminary inquiry utilises to determine whether to commit an accused to trial. An application will fail in any case where, taking the Crown’s case at its highest, there is admissible evidence which, if believed, could result in a conviction.
[6] The approach to be taken by a preliminary inquiry judge, and, hence, by a trial judge on a directed verdict application, is set out in R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828 at paras. 22, 23 and 30 (references omitted):
22 The test is the same whether the evidence is direct or circumstantial. The nature of the judge's task, however, varies according to the type of evidence that the Crown has advanced. Where the Crown's case is based entirely on direct evidence, the judge's task is straightforward. By definition, the only conclusion that needs to be reached in such a case is whether the evidence is true. It is for the jury to say whether and how far the evidence is to be believed. Thus if the judge determines that the Crown has presented direct evidence as to every element of the offence charged, the judge's task is complete. If there is direct evidence as to every element of the offence, the accused must be committed to trial.
23 The judge's task is somewhat more complicated where the Crown has not presented direct evidence as to every element of the offence. The question then becomes whether the remaining elements of the offence -- that is, those elements as to which the Crown has not advanced direct evidence -- may reasonably be inferred from the circumstantial evidence. Answering this question inevitably requires the judge to engage in a limited weighing of the evidence because, with circumstantial evidence, there is, by definition, an inferential gap between the evidence and the matter to be established -- that is, an inferential gap beyond the question of whether the evidence should be believed. The judge must therefore weigh the evidence, in the sense of assessing whether it is reasonably capable of supporting the inferences that the Crown asks the jury to draw. This weighing, however, is limited. The judge does not ask whether she herself would conclude that the accused is guilty. Nor does the judge draw factual inferences or assess credibility. The judge asks only whether the evidence, if believed, could reasonably support an inference of guilt.
30 In performing the task of limited weighing, the preliminary inquiry judge does not draw inferences from facts. Nor does she assess credibility. Rather, the judge's task is to determine whether, if the Crown's evidence is believed, it would be reasonable for a properly instructed jury to infer guilt. Thus, this task of "limited weighing" never requires consideration of the inherent reliability of the evidence itself. It should be regarded, instead, as an assessment of the reasonableness of the inferences to be drawn from the circumstantial evidence.
[7] Where more than one inference can be drawn from the evidence, only inferences that favour the Crown are to be considered for the purposes of an application for a directed verdict: R. v. Sazant, 2004 SCC 77, [2004] 3 S.C.R. 635, at para. 18. The judge is not entitled to weigh the competing inferences available to the Crown and the accused: R. v. Pettipas-Lizak, 2017 ONCA 963, at para. 8.
[8] To prove guilt of dangerous operation of a motor vehicle causing death, Crown counsel must prove each of these essential elements beyond a reasonable doubt:
a. that Mr. O’Neil operated a motor vehicle;
b. that he operated the motor vehicle in a manner that was dangerous to the public; and
c. that his operation of the motor vehicle caused Mr. Moulton’s death.
[9] It is the second of these elements that is contested in this case. To decide whether Mr. O’Neil operated the motor vehicle in a manner that was dangerous to the public, a judge or a jury must consider all the circumstances in which the driving occurred.
[10] In David Watt, Watt’s Manual of Criminal Jury Instructions, 2nd ed., (Toronto: Carswell, 2015), at p. 843, the following jury instruction in relation to the second element is provided:
Take into account, but do not limit yourself to evidence of
• the nature, condition and use of the place where the driving occurred;
• the amount of other traffic, both vehicles and pedestrians, actually there at the time; and
• the amount of other traffic, both vehicles and pedestrians, that might reasonably be expected to be there at the time.
Dangerous operation of a motor vehicle involves more than just carelessness in [the defendant]’s driving. Crown counsel must satisfy you beyond a reasonable doubt that [the defendant]’s driving was a marked departure from what a reasonable, prudent driver would do in the same circumstances. What you have to decide, in all the circumstances (including evidence about [the defendant]’s state of mind), is not what [the defendant] meant to do, but rather, whether [the defendant] drove in a manner that was a marked departure from the manner in which a reasonable, prudent driver would drive in the same circumstances. It is the manner of [the defendant]’s driving on which you must focus.
Crown counsel does not have to prove that [the defendant] meant to cause death to or endanger the life of [the deceased] or anyone else who was or might have been there at the time.
The Evidence
[11] Earlier in the morning of 1 September 2017, there had been another accident on the eastbound Highway 401, to the east of the Joyceville Road exit at mile 632. The road was still closed at the time of the accident giving rise to this charge. Traffic was being diverted off the highway at Exit 632.
[12] Ministry of Transportation variable message signs located near Westbrook and Sydenham Roads on the eastbound 401 as it passed through Kingston advised of the road closure ahead.
[13] Just before the accident, Mr. Moulton’s vehicle was moving slowly ahead of Mr. O’Neil’s vehicle. According to information obtained by the accident reconstruction team led by Sergeant Martin from the airbag control module of the Orlando, 5 seconds before the impact, the Orlando was travelling at 18 km/h. The accelerator pedal was not engaged at all.
[14] Ahead of Mr. Moulton’s vehicle, there were around twelve other slow-moving vehicles. Mr. Donlon, who was in the next vehicle in line, described how traffic had been stop and go. Just before the accident he said that traffic ahead of him had come to a halt. He thought about putting his vehicle in “park” and was picking up a cup of coffee that was in his vehicle’s cup-holder. He had seen Mr. Moulton’s vehicle behind him and observed it slowing down. To quote Mr. Donlon, “he wasn’t tailing me”.
[15] Sergeant Martin’s accident reconstruction located gouge marks on the paved surface of the highway representing the first impact which Mr. O’Neil’s vehicle had with the Moulton and Donlon vehicles respectively. From tyre marks on the road surface, Sergeant Martin surmises that the International started braking approximately 104 metres before the first gouge, which would be the impact with the Orlando. Factoring in a perception-reaction time, a standard brake lag time, and an assumed speed of 100 km/h, Sgt. Martin estimates that Mr. O’Neil reacted approximately 160 metres before his vehicle struck the Orlando.
[16] Although Mr. O’Neil braked, Sgt. Martin’s evidence was that the tyre marks were not suggestive of hard braking activity.
[17] Assuming a speed of 100 km/h, Sgt. Martin’s estimate was that it would require a distance of between 116.16 and 124.67 metres for the driver of a vehicle such as the International to recognise the hazard of slower cars in front and come to a halt using 100% braking.
[18] Sgt. Martin testified that, based on his observations at the scene, there was a clear view for traffic approaching the impact location for 800 metres.
[19] According to Sergeant Martin, the speed of the International at the moment it struck the Orlando was 79 km/h.
[20] It is conceded by the Crown that there is no evidence of any impairment, cell-phone use, or other distractions to Mr. O’Neil’s driving. Nor was evidence collected that Mr. O'Neil was tired, sleepy, overworked, or driving too much.
[21] No mechanical defects were found in any of the vehicles that would have contributed to the accident.
Defence Position
[22] The defendant takes the position that the Crown has not adduced sufficient evidence, direct or circumstantial, that the manner of Mr. O’Neil’s driving was dangerous in that it was a marked departure from what a reasonable, prudent driver would have done in the same circumstances.
[23] Even accepting (which the defence does not concede) that Mr. O’Neil should have appreciated that there was slow moving traffic ahead of him, the Crown’s case is said to rest on the theory that he should have braked harder. A criminal charge of dangerous driving causing death is not about civil responsibility for an accident. It is not about whether Mr. O’Neil was negligent or not. As Charron J. explained in R. v. Beatty, 2008 SCC 5, [2008] 1 S.C.R. 49, at para 45:
… conduct that constitutes dangerous operation of a motor vehicle as defined under s. 249 will necessarily fall below the standard expected of a reasonably prudent driver. The converse however is not necessarily true -- not all negligent driving will constitute dangerous operation of a motor vehicle.
[24] Taking into account all of the circumstances – as the court must – Mr. O’Neil’s driving cannot be said to have been dangerous in the sense of rendering the manner of his driving criminal. He was driving in his lane. He was not speeding. There is no evidence of impairment, distraction or disregard of traffic laws. He came upon a hazardous scene and braked at a time that was appropriate. But despite his otherwise good and prudent driving he was involved in a deadly collision.
[25] Ms. Primeau argues that the Crown is inviting the Court to draw inferences from the evidence that would amount to conjecture. Reference is made R. v. Morrissey, (1995), 1995 CanLII 3498 (ON CA), 97 C.C.C. (3d) 193 (Ont. C.A.) where Doherty J.A. wrote, at p. 209:
A trier of fact may draw factual inferences from the evidence. The inferences must, however, be ones which can be reasonably and logically drawn from a fact or group of facts established by the evidence. An inference which does not flow logically and reasonably from established facts cannot be made and is condemned as conjecture and speculation.
[26] Ms. Primeau submits that there is no evidence to bridge what she describes as the “gap”. There is no evidence as to whether Mr. O’Neil braked abruptly or gradually. Even if it was his failure to hit the brakes hard enough to avoid the accident that caused the accident, that is not sufficient to render the manner of his driving criminally dangerous.
Crown Position
[27] The Crown takes no issue with the legal analysis offered by the defence. In particular, the Crown accepts that the ultimate outcome of the accident does not determine whether Mr. O’Neil is guilty or not.
[28] Dangerous driving can be a complex charge and is very fact dependent. Ms. Foxton argues that the defence position relies on a selective view of the evidence. She places particular emphasis on the impact speed of 79 km/h into essentially stopped traffic, which she described as driving that is inherently and objectively dangerous.
[29] While the question of whether or not Mr. O’Neil braked sufficiently hard is certainly part of the analysis, it is not the only thing that the case turns on. Driving straight and obeying the speed limit alone, in circumstances where a reasonable and prudent driver, knowing that there was a road closure coming up, failed to see and avoid hitting an essentially stationary line of traffic that was visible from a distance of at least 800 metres, is dangerous driving.
[30] One of the other witnesses who testified for the Crown, Ronald Armstrong, had been driving a similar vehicle to Mr. O’Neil’s at a slightly earlier time – his vehicle was the second vehicle ahead of Mr. Donlon’s in the line. His evidence of the driving conditions and circumstances also offers a helpful perspective in which to evaluate Mr. O’Neil’s actions.
Discussion
[31] On an application such as this, it is necessary only for the Crown to be able to establish that there is evidence – any evidence – upon which a properly instructed jury could conclude that the essential elements of the offence are established. Although I am required, as explained in Arcuri, to engage in a limited assessment of whether the evidence is reasonably capable of supporting the inferences that the Crown asks me, as the trier of fact, to draw, I am not asked at this stage to weigh possible competing inferences or theories of what happened.
[32] So, having said all of that, and despite Ms. Primeau’s able arguments, I am not persuaded that there is an evidentiary gap that can only be filled by resort to speculation.
[33] Although it was not mentioned in argument today, the Court of Appeal has said on another occasion when dealing with a directed verdict appeal that even if there was much to be said for the defendant’s argument that an inference favoured by the Crown should not be drawn, it might still not be said that such a conclusion was unreasonable: R. v. Plaha, 2008 ONCA 96.
[34] In this case there are, or could be, logical connections between the evidence of the signage, of the behaviour of other drivers, of the road conditions, and of the evidence of braking, impact speed, perception and reaction times that are capable of supporting the inferences that I am asked to draw. Whether or not that evidence, including those inferences, will lead to a conviction remains to be seen. Suffice it to say that at this stage, the Crown’s case is not so devoid of any evidence supporting a finding of dangerous driving causing death that I should direct a verdict of acquittal on that charge.
[35] Accordingly, the application is dismissed.
Mew J.
Handed down: 2 December 2021
COURT FILE NO.: CR-20-00000037-0000 (Kingston)
DATE: 20211202
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
ROBBIE O’NEIL
Defendant/Applicant
REASONS FOR decision
Mew J.
Handed down (orally): 2 December 2021