I. Overview

[1] On a Sunday evening in late September 2019, Stewart Sweeney was riding his father’s Harley-Davidson motorcycle westbound on Highway 7, headed for a rock-climbing gym. The defendant Nathan Coates, an off-duty York Regional Police officer, had spent the day at a slow-pitch softball tournament in Markham and was returning home, driving his SUV eastbound along Highway 7.

[2] At approximately 7:15 p.m., the two vehicles approached one another on an S-curve a short distance west of York-Durham Line and collided. The collision occurred in the westbound lane, after Mr. Coates’s SUV crossed the centre line into the oncoming lane. Mr. Sweeney was thrown from his motorcycle and ended up lying in the grass on the north side of the road. His left leg and shoulder had been badly hurt, and he ultimately had to have his leg amputated above the knee.

[3] After the collision Mr. Coates continued driving east for nearly four more kilometres before he pulled over to the side of the road. He did not call 911 to summon aid for Mr. Sweeney.

[4] Despite his serious injuries, Mr. Sweeney managed to get his cell phone out of his pocket and call 911 himself. Police and paramedics eventually found him and took him to the hospital.

[5] Mr. Coates was arrested at the side of the road 3.88 kilometres from the accident scene, and now faces multiple criminal charges.

[6] In a pre-trial ruling I delivered on June 1, 2022 (reported as R. v. Coates, 2022 ONSC 3262), I concluded that Mr. Coates’s Charter rights had been violated after his arrest, and that the results of breath tests conducted after he was brought to the police station should be excluded from evidence as a remedy for this breach. It is common ground that this evidence was essential to the Crown’s case on one of the four charges against him, and I have already found Mr. Coates not guilty on that charge. This leaves three charges still remaining.

[7] After the Crown closed its case, I granted a motion by Mr. Coates to sever one of the three remaining counts from the other two, because he wished to testify and present other evidence only in relation to one of the three charges. I did so on the basis that I would continue to be the trial judge on both sets of charges, and that the evidence the Crown had already adduced would be deemed to be read into the record at what would now be a separate trial on the third count.

[8] Accordingly, I must now render verdicts in two separate trials. In practical terms, this means that I must entirely disregard Mr. Coates’s testimony and the other defence evidence when considering the first two charges, but then consider it in relation to the third charge.

II. The charges and the procedural history of the case

[9] Mr. Coates elected to be tried by me, sitting without a jury. He was charged on a four-count indictment alleging the following offences:

Count 1: causing bodily harm while operating a conveyance and while committing an offence under s. 320.14(1) of the Criminal Code, contrary to s. 320.14(2);

Count 2: having a blood alcohol concentration of over 80 mg/100 ml blood within two hours of operating a conveyance, contrary to s. 320.14(1)(b);

Count 3: dangerous operation of a conveyance causing bodily harm, contrary to s. 320.13(2); and

Count 4: failing to stop after an accident and render assistance, contrary to s. 320.16(1).

[10] As I have already noted, Mr. Coates brought a pre-trial Charter application which I granted on June 1, 2022. I found breaches of his Charter rights, and as a s. 24(2) Charter remedy excluded the readings from the breath tests conducted after his arrest. This evidence was essential to the Crown’s case on Count 2.

[11] Mr. Coates’s trial then began on June 6, 2022. The parties agreed that the evidence I had already heard on his Charter application would form part of the evidential record on the trial proper. The Crown then called additional evidence over two weeks.

[12] After the Crown closed its case on June 15, 2022, I entered an acquittal on the “over 80” charge in Count 2, which the Crown could not prove without the excluded breath readings. On June 16, 2022, I dismissed the defence’s application for a directed verdict of not guilty on Counts 1 and 3.

[13] The defence then applied to have Count 4 severed from the other counts, on the basis that Mr. Coates wanted to testify on Count 4 while maintaining his right not to be compelled as a witness on Counts 1 and 3. The parties agreed that if the counts were severed, Mr. Coates’s separate trial on Count 4 would proceed immediately before me, and that the evidence I had already heard, including the evidence from the Charter voir dire, would be deemed read into the record at the second trial: see Matheson v. The Queen, 1981 CanLII 202 (SCC), [1981] 2 SCR 214, at pp. 217-18; see also R. v. Clunas, 1992 CanLII 127 (SCC), [1992] 1 S.C.R. 595.

[14] On June 20, 2022 I gave oral reasons granting Mr. Coates’s severance application. The Crown then laid a new indictment charging Mr. Coates with the fail to stop charge that was Count 4 on the original indictment. Mr. Coates proceeded to testify only in relation to the fail to stop charge, and also called additional evidence in support of his defence to this charge.[^1]

[15] I will refer to the original indictment that contains Counts 1 to 3 as “the first indictment”, and to the new indictment with the single count that was previously Count 4 on the first indictment as “the second indictment”. Likewise, I will refer to the trial on the first indictment as “the first trial” and the trial on the second indictment as “the second trial”.

[16] I heard final submissions by counsel in relation to both trials on June 24, 2022 and reserved my decision.

[17] My reasons for judgment will be structured as follows:

i) I will begin by summarizing the evidence adduced by the Crown, which is admissible in both trials. During this summary I will make findings of fact on certain issues, and explain my reasoning for making these findings;

ii) I will then address the two remaining counts in the first trial, namely, the impaired operation of a conveyance charge in Count 1, and the dangerous operation charge in Count 3. I will make further findings of fact and explain my reasoning;

iii) I will then review the defence evidence that is only admissible in the second trial of the fail to stop charge;

iv) Finally, I will address the question of Mr. Coates’s liability on the fail to stop charge, and make findings of fact as necessary.

III. The evidence admissible on all counts

[18] As I have already noted, the parties agreed that the evidence that was presented by the Crown on the defence’s Charter application would become part of the evidential record at Mr. Coates’s trial. After I granted his application to have the fail to stop charge severed from the other counts, the parties also agreed that all of the evidence from the first trial, including the evidence called on the Charter application, would be deemed to have been read into the record at the second trial on the fail to stop charge.

A. Mr. Coates’s drinking during the day

[19] Mr. Coates spent the afternoon of September 29, 2019 at Milliken Mills Park in Markham, where his slow-pitch softball team was playing in their season-ending league championship tournament. The team went by the name “M.L.D.”, standing for “Major League Drinkers”.

[20] Mr. Coates drove to the park in his Nissan Pathfinder SUV. Surveillance videos from the area showed that he arrived at approximately 12:17 p.m. These videos were not entered as exhibits, but the police accident reconstructionist, Sgt. Derek Cadieux, referred to them in his report and was cross-examined about what he saw when he watched them. His evidence about the contents of the videos was not contentious.

[21] Mr. Coates’s team lost its first-round game, which knocked it out of the playoff tournament. However, he and some of his teammates stayed at the park to socialize and watch the remaining playoff rounds.

[22] Three of Mr. Coates’s teammates testified at trial. They all agreed that Mr. Coates brought a bottle of rum to the park, but each gave somewhat different evidence about how much alcohol Mr. Coates drank that afternoon.

[23] Fernando Su, who like Mr. Coates is a York Regional Police officer, testified that after the game, at around 3:00 or 3:30 p.m., the five or six players who had remained had a toast of rum mixed with Gatorade or water while they were together in the parking lot. He estimated that they each drank approximately one ounce of rum. Mr. Su did not see anyone drinking any other alcoholic beverages before he left the park at around 4:00 p.m.

[24] Kaveh Haleky testified that before M.L.D.’s game started at around 11:30 a.m., he and Mr. Coates both decided to mix approximately an ounce of rum into the bottles of Gatorade they each planned to drink from during the game. They also put five or six ounces of rum into a third Gatorade bottle, intending to give it to one of their teammates, who did not drink alcohol, as a prank. However, Mr. Haleky testified that they then changed their minds about playing this prank on their teammate, and that Mr. Coates put the bottle in his vehicle.

[25] Mr. Haleky also brought a 12-back of beer to the park. He recalled that most of the team members who stayed at the park after the game, including Mr. Coates, drank one of these beers.

[26] The third team member witness, Andy Trinh, also recalled someone bringing beer for the team to share, but did not specifically recall if Mr. Coates had any of this beer. He remembered seeing Mr. Coates, Mr. Haleky and another teammate named Rick all drinking rum in the parking lot.

[27] For his part, Mr. Haleky also recalled Rick drinking rum in the parking lot, but denied that either he or Mr. Coates drank any rum other than what they had mixed with their Gatorade and drank during the softball game. Neither Mr. Trinh nor Mr. Haleky recalled there ever being a toast with rum, as described by Mr. Su.

[28] Mr. Haleky and Mr. Trinh both recalled Rick drinking so much rum that he passed out on the grass. He was obviously in no condition to drive, so Mr. Haleky and Mr. Trinh ended up helping him to Mr. Trinh’s car, and Mr. Trinh drove him home.

[29] However, all three witnesses agreed that they did not see Mr. Coates showing any signs that he was impaired by alcohol that afternoon.

B. Data retrieved from the “infotainment system” of Mr. Coates’s SUV

[30] The police retrieved data from the hard drive of Mr. Coates’s Nissan Pathfinder SUV’s “infotainment system” computer. This data included contacts that had been transferred from his phone when it was connected by Bluetooth, as well as log files showing the Global Positioning System (“GPS”) longitude and latitude coordinates of the vehicle, recorded at one-second intervals.

[31] This GPS data can be used to track the vehicle’s movement and speed over time to a fairly high level of accuracy.

[32] However, there are some obvious errors and anomalies in the GPS positional and speed data. For instance, on some occasions it shows the Nissan travelling some distance off the paved roadway, at times when it is undisputed that it was still on the road. There are also anomalous data points showing the Nissan suddenly moving at times when it was actually parked or stopped.

[33] These positional data errors result in corresponding anomalous and plainly wrong speed recordings. For instance, one data point from the afternoon purports to show the Nissan’s position suddenly changing by a tenth of a mile in one second, while the corresponding speed data shows it suddenly accelerating from a stop to a speed of 570 km/h.

[34] Subject to these caveats, I find that the GPS data paints a generally accurate picture of the Nissan’s movement and speed when it is averaged out over relatively long time intervals. Sgt. Cadieux testified that based on the anomalies in the data set he concluded that the average speed data is accurate to within +/- 6.7 km/h, and I accept his evidence on this point.

C. Mr. Coates leaves Milliken Mills Park and drives east

[35] The security videos from the area show that Mr. Coates left the park in his Nissan SUV at approximately 7:00 p.m. This is confirmed by the GPS data from the vehicle’s “infotainment” system. Sgt. Cadieux, who watched the security videos from the area around the park, stated in his report and confirmed in his testimony that he “did not see the vehicle driving abnormally” on these videos.

[36] The GPS data shows that after leaving the park Mr. Coates drove west on 14th Avenue and then went north on Markham Road to Highway 7, where he turned east. His cell phone records show that at 7:04 p.m. he received a call that lasted until 7:07 p.m., which was shortly before he turned north onto Markham Road. His softball teammate Kaveh Haleky testified that this call was made from his phone number, but he did not remember making it.

D. The accident scene

[37] For most of its length in this area Highway 7 runs approximately east-west, although the road grid in this part of Ontario is rotated slightly counter-clockwise from the cardinal compass points.

[38] However, to the west of York-Durham Line Highway 7 makes an S-curve to the south. A motorist approaching the curve from either direction must first turn left, then travel a north-south straightaway that continues for approximately 600 metres, and then turn right. Through the S-curve the road has a single lane in each direction, separated by a double yellow line, and wide paved shoulders on both sides of the roadway. To the east of the S-curve the road widens to two lanes westbound and three lanes eastbound as it approaches the York-Durham Line intersection. The speed limit on this section of Highway 7 is 70 km/h.

[39] Sunset on the evening of September 29 was at 7:02 p.m., and it remained dusk until 7:30 p.m. Several in-car video recordings were played at trial that were made that evening by police vehicles in other parts of York Region, all some distance north and west of the intersection of Highway 7 and York-Durham Line. These recordings show that between 7:05 to 7:25 p.m. the sky was still bright and visibility was still good.

E. Mr. Coates’s driving as he approached the S-curve

[40] Cell phone tower and calling records were adduced that show that as Mr. Coates drove east along Highway 7 he made a series of eight outgoing phone calls to Mr. Haleky’s number. These calls were placed between 7:10 and 7:14 p.m. Most lasted for only a few seconds, but three were between 27 and 35 seconds in length. Mr. Haleky did not recall receiving any of these calls from Mr. Coates.

[41] The Nissan’s GPS data shows that Mr. Coates made the second-last of these calls, a six-second call placed at 7:13 p.m., just before he reached the S-curve to the west of York-Durham Line. He then made a final 5-second call at 7:14 p.m. after he had made the first turn and was driving north on the straightaway towards the second part of the curve.

[42] The GPS data also shows that as Mr. Coates approached the first part of the S-curve his SUV was travelling at approximately 122 km/h. It then slowed to approximately 113 km/h as it entered the first part of the S-curve, and its speed then decreased to between 87 and 94 km/h as it drove along the straightaway, before increasing to approximately 100 km/h as it entered the second part of the S-curve.

F. Stuart Sweeney’s evidence

[43] Stuart Sweeney is now 26 years old and was 23 at the time of the accident in September 2019. He testified that before the accident motorcycling had been his “passion”.

[44] Mr. Sweeney had been involved in a previous accident during which he drove off the road in a car in the early morning hours after missing a curve while adjusting the radio. His driver’s licence had also at one point been suspended for 30 days after he accrued too many demerit points for speeding, but he could not recall whether this was before or after the accident in which he had driven off the road.

[45] In September 2019 Mr. Sweeney was living in Pickering with his parents. Three months earlier his father had bought a Harley-Davidson Road Glide motorcycle. They both used it, but Mr. Sweeney described himself as the motorcycle’s main rider. His time on the new motorcycle had been limited because it had spent several weeks in the shop having various upgrades installed, but Mr. Sweeney explained that he had taken it on an overnight road trip with a friend, and estimated that since his father bought it he had ridden it for more than 2,000 kilometres.

[46] On the evening of September 29, Mr. Sweeney decided to go to a rock-climbing gym in Markham, which he did regularly. He took the Harley-Davidson and followed his usual route to the gym, which took him north on York-Durham Line and west onto Highway 7. Mr. Sweeney testified that he had not been drinking or using any drugs that evening. He acknowledged that he was listening to music through headphones attached to his phone, explaining that he regularly did this while riding, in part to block some of the engine noise and protect his hearing.

[47] Mr. Sweeney recalled that it was a clear evening with dry roads. When he drove north on York-Durham Line and stopped at the traffic light at Highway 7, the sun had not yet set fully, and it was still light out.

[48] Mr. Sweeney explained that he stopped in the left-turn lane of York-Durham Line behind another vehicle. When the light turned green, he and the other vehicle both turned west into the left-hand westbound lane of Highway 7. Mr. Sweeney then signalled and moved into the right-hand lane and passed the other vehicle on the right. The right-hand lane ends shortly before the S-curve, so after passing the other vehicle Mr. Sweeney pulled back into the left lane, which continues into the curve as the single westbound lane.

[49] Mr. Sweeney testified that as he approached the first part of the S-curve he saw an oncoming vehicle that was “quite tight to the line”, although it had not crossed over into his lane. In response, he moved his motorcycle further to the right to give himself more room. He explained that motorcyclists treat traffic lanes as if they were divided into three “tracks”, with the left and right tracks approximating where the left and right wheels of an automobile would be, and the centre track in the middle. Motorcyclists usually ride in the left track, which was where Mr. Sweeney had positioned himself when he approached the curve, but when he saw the oncoming vehicle he moved into an area between the centre and right tracks.

[50] Mr. Sweeney and the oncoming vehicle passed each other without incident, and he continued into the curve, moving his motorcycle back into the left track. He estimated that his speed was now approximately 85 km/h.

[51] He then saw a second vehicle, which he now knows was Mr. Coates’s Nissan SUV, approaching in the oncoming lane. It was about 100 feet away when he first saw it and was travelling properly in the eastbound lane. Mr. Sweeney explained:

[I]t seemed like everything would be fine, and then as he was coming past me he quickly veered towards my lane. I tried to avoid it by going to the outside of the lane – so the right side – and that’s when I was struck and thrown off my motorcycle. I flipped over the handlebars and skidded into the ditch.

[52] During the collision the driver’s side of the Nissan came into contact with the left side of the motorcycle and with Mr. Sweeney’s left leg, shattering the bones below the knee. Mr. Sweeney was thrown off the motorcycle and ended up in the grass on the north side of the road.

[53] When Mr. Sweeney testified at the preliminary inquiry, he drew a diagram in which he indicated that he first saw Mr. Coates’s vehicle approaching him after he had completed the first part of the S-curve. He placed the collision as occurring at approximately the mid-point of the straightaway between the two curves. This diagram was made an exhibit at trial, and Mr. Sweeney adopted it as accurately reflecting his present memory of events.

[54] As I will discuss later, the physical evidence from the accident scene shows that Mr. Sweeney’s recollection of where the collision occurred is inaccurate. The accident really occurred near the western end of the first part of the S-curve, north of where Mr. Sweeney placed it on his diagram and closer to York-Durham Line.

G. Evidence regarding the time of impact and the speed of the vehicles when they collided

[55] The data from the Nissan’s infotainment system shows that until before 7:14:27 p.m. the vehicle had been travelling at approximately 100 km/h, and that at this point it then suddenly decelerated, such that by 7:15:00 pm its speed had dropped to approximately 49 km/h. Based on this and on other evidence I will discuss later, Sgt. Cadieux concluded that this was the time of the collision. As I will also discuss later, this accords with the evidence that Mr. Sweeney called 911 at 7:16 p.m., while he lay badly injured at the side of the road.

[56] Based on the position where Mr. Sweeney was found lying at the side of the road, Sgt. Cadieux used a physics equation called “Searle’s formula” to calculate a range of possible speeds that the motorcycle could have been travelling before the collision. His calculations put the motorcycle’s pre-collision speed at between 82 km/h and 101 km/h.

[57] Searle’s formula produces a range of speeds because the distance a person who is thrown from a vehicle will travel before coming to rest depends on the launch angle, which is usually unknown. The formula also makes some simplifying assumptions, including that the person lands on a flat asphalt surface with a certain coefficient of friction. These latter assumptions do not match the known facts of this case, since Mr. Sweeney slid off the asphalt roadway and onto a grass surface that descended into a ditch.

[58] Sgt. Cadieux acknowledged in cross-examination that his calculations also did not take into account that Mr. Sweeney did not fly freely off the motorcycle, but instead struck his left leg against the SUV with sufficient force to break his lower leg bones. This would have slowed him down to some extent. Sgt. Cadieux explained that he could not factor this into his calculation because he was unable to quantify how much Mr. Sweeney’s speed would have decreased on account of the impact between his body and the SUV.

[59] I accept that this omission affects the accuracy of Sgt. Cadieux’s pre-collision speed estimate for the motorcycle. However, the significance of this is reduced by the fact that his estimate already gave only a broad range of possible speeds. I am satisfied that the motorcycle was very likely not moving as slowly as 82 km/h, and that it could have been travelling somewhat faster than 101 km/h.

[60] I should also note that the police never tried to determine whether more accurate speed information could have been extracted from the motorcycle’s computer system, akin to the GPS data they obtained from the Nissan’s computer. There is no evidence before me about whether the Harley-Davidson’s computer stored GPS tracking information or, if did, whether this information could have been recovered if the investigators had tried to power up the motorcycle’s computer.

H. Evidence regarding the motorcycle’s high beam switch

[61] When the Harley-Davidson was examined by the police some months later, in January 2020, they found that the rocker switch for the headlights’ high beams, which is located on the left handlebars, was in the “on” position. There is no evidence about whether this switch was in this same position when the motorcycle was first located at the side of the road after the accident, or whether it could have been toggled accidentally when the motorcycle was being transported to the garage where it was stored before the police examined it. It is also impossible to know whether the switch was toggled during the collision itself.

[62] Mr. Sweeney denied that he had been riding that evening with his high beams switched on, explaining that he only used them when riding on secluded country roads, and would not have had them switched on while riding along a busy road like Highway 7.

[63] Mr. Sweeney also initially testified that the Harley-Davidson was equipped with an automatic high-beam dimmer that would have turned off the high beams when it detected oncoming light. He also purported to remember this system being very sensitive and dimming the high beams based only on reflected light from the motorcycle’s own headlamps.

[64] However, in cross-examination defence counsel suggested that Mr. Sweeney was wrong about the Harley-Davidson having this feature. He initially expressed uncertainty, and when he continued testifying the next day acknowledged that his previous evidence about the motorcycle having auto-dimming high beams was wrong. Mr. Sweeney explained that he had confused his memories of riding the Harley-Davidson with his recollection of driving his father’s truck, which did have this feature.

I. Mr. Sweeney’s 911 call, his injuries, and the damage to the motorcycle

[65] Mr. Sweeney’s left arm and leg were badly injured in the accident. He flew over the handlebars of the motorcycle and slid off the road into the ditch on the north side of the road. He managed to get his phone out of his pocket and call 911. His phone records show that he placed this call at 7:16 p.m.

[66] A recording of the 911 call was played at trial. The recording is harrowing. It took several minutes for the dispatcher to figure out where Mr. Sweeney was calling from, and then took more time for the police and paramedics to arrive at the accident scene and locate Mr. Sweeney at the side of the road. He remained on the call with the 911 dispatcher for approximately 15 minutes until help arrived.

[67] Mr. Sweeney was transported to Sunnybrook Hospital, where doctors had to amputate his lower left leg. He later required a second surgery to amputate his leg higher up, above the knee, after doctors determined that the part of his leg remaining below the knee was insufficient to support a prosthesis. Mr. Sweeney also required further surgery to repair his broken left arm, which involved the insertion of a plate and screws.

[68] Mr. Sweeney has brought a civil action against Mr. Coates and others, including his insurer, the softball league, and the City of Markham, seeking $10 million in damages.

[69] The Harley-Davidson motorcycle also slid off the road on the north side and wound up lying on its left side. The police took photographs of it at the scene and then transported it to a secure holding area, where it was later examined by PC Fawaz Owayda in January 2020. He observed damage to both sides of the motorcycle. The handlebar was bent, and fluid was leaking from the front brake line. Based on his mechanical examination PC Owayda concluded that the motorcycle was nearly new, and that apart from the damage it had presumably sustained in the collision it was in satisfactory mechanical condition.

[70] PC Owayda was unable to try to start the motorcycle’s engine because he did not have the key. He did not determine what gear the transmission was in. The motorcycle’s electrical system did not appear to be receiving any power, but PC Owayda did not know why.

[71] As I have already noted, there is no evidence that the police ever tried to extract data from the motorcycle’s computer, nor is there any evidence about whether any data that could have been extracted would have included GPS data similar to what the police obtained from Mr. Coates’s Nissan SUV.

J. Sgt. Cadieux’s opinion evidence regarding the collision

[72] Sgt. Derek Cadieux is a collision reconstructionist with the YRP’s Major Collision Investigation Unit. I qualified him to give opinion evidence as an expert in accident reconstruction.

[73] Sgt. Cadieux first went to the accident scene on the night of September 29 and examined the roadway for tire marks and debris. He used pylons to mark points of interest. Sgt. Cadieux then used a three-dimensional scanner to create a digital record of the area. This data can now be used to generate an accurate virtual representation of the accident scene on a computer screen. Among other things, the software program used to display this representation, called TruView, enables precise measurements to be made of the distance between any two points.

[74] Sgt. Cadieux and his team returned the next day and used a drone to take a series of aerial photos of the roadway by daylight. These photos were then combined to create a composite digital orthomosaic map of the area, extending from the accident scene to the place on Highway 7 nearly 4 kilometres to the east where Mr. Coates’s vehicle eventually stopped.

[75] These two digital files were both made exhibits at trial, and I was provided with a copy of the software necessary to view the three-dimensional virtual scene imaging. Although Sgt. Cadieux provided instructions during his testimony about how to use the software to make measurements, I decided that it would not be appropriate for me to do so out of court and outside Mr. Coates’s presence. However, Sgt. Cadieux used the software while he was testifying to make various measurements.

[76] Sgt. Cadieux prepared a written report setting out his conclusions and opinions. His report and his opinion evidence at trial relies in part on his own observations, measurements he made using the 3D imaging of the accident scene, and the mathematical calculations he performed to estimate the speed of the motorcycle, which I have already discussed.

[77] Sgt. Cadieux also relied on the data obtained from the Nissan’s infotainment system, and on examinations of the Nissan and the motorcycle that were conducted by other officers.

[78] Sgt. Cadieux concluded that the collision occurred in an area of the westbound lane approximately 500 metres west of York-Durham Line. He could not pinpoint the exact place on the roadway where the collision occurred, but could determine an approximate area based on the locations of scrapes and tire marks on the roadway; the debris from both vehicles, which included transmission fluid that leaked from a broken transmission line on the Nissan; and blood and tissue deposits on the road surface.

[79] Sgt. Cadieux concluded that the impact had occurred in the westbound lane, somewhere in a roughly circular area that is approximately 2.88 metres wide. The point of impact could have occurred anywhere from 0.47 and 3.24 metres from the centre line of the roadway, depending on the angles of approach of the two vehicles. Sgt. Cadieux considered the most likely scenario to be one where the point of impact occurred in the westbound lane at a point 1.39 metres from the centre line.

[80] Sgt. Cadieux explained that he did not observe any skid marks on the roadway caused by either vehicle having braked hard before the collision, but agreed that either could have braked without leaving marks on the road.

[81] I should note that the area of the roadway that Sgt. Cadieux identified as the likely location of the point of impact is on a part of the curve where the road runs approximately north-south. However, throughout the trial counsel and witnesses referred to things on the roadway as being “west” or “east” of the point of impact, referring to the overall direction of travel on Highway 7. I will follow this same convention and will sometimes refer to the locations of items or marks as being west or east of the point of the collision, even when these locations would be more accurately described geographically as being south or north.

K. The Nissan drives away from the accident scene

[82] The air bags of Mr. Coates’s SUV did not deploy during the collision. Mr. Coates continued driving eastbound along Highway 7, crossing York-Durham Line and then continuing for several more kilometres before pulling over and stopping at the right side of the road. The place he pulled over was approximately 3.88 kilometres east of the accident site, and the GPS data shows that after the accident his vehicle continued driving for approximately 3½ minutes. For the first three minutes its speed ranged between 85 km/h and 50 km/h, and during final thirty seconds of travel it decelerated to a stop.

[83] After the collision the Nissan began leaking transmission fluid onto the roadway from a broken line. The front left tire was also now blown out, and as the Nissan continued driving east it began leaving a distinctive “scalloped” tire mark on the roadway.

[84] The marks on the roadway show that immediately after the collision the Nissan was at least partly in the westbound lane, but that before it reached York-Durham Line it crossed back over the centre line into the eastbound lane. Sgt. Cadieux measured the point where the Nissan crossed back into the eastbound lane as 38.32 metres east of the area where the collision occurred, following the curve of the roadway, or 38.25 metres when measured in a straight line.

[85] The Nissan then remained in the eastbound lane for the duration of its journey, until it pulled over at the side of the road approximately 3.88 kilometres east of the accident site.

[86] Photographs taken of the Nissan at the side of the road show extensive damage to the front corner on the driver’s side. In his report Sgt. Cadieux included additional photos that were taken later, after the Nissan had been moved to a storage facility. In December 2019, PC Armando Pecchia, who is a trained auto mechanic, conducted a mechanical examination of the Nissan. Additional photographs of the damage to the vehicle were adduced during his evidence.

[87] PC Pecchia testified that the Nissan had nearly 121,000 kilometres on the odometer, and that apart from the damage to the left front corner it appeared to be in good mechanical order. The front headlight assembly on the left side had been broken off and was missing. The steering mechanism appeared to be largely intact. He had expected the steering column to be locked and had not been given the vehicle’s keys, but discovered that the locking mechanism was disengaged and that he was able to maneuver the steering back and forth with the Nissan raised off the ground on jacks. The steering mechanism turned smoothly up to the point where it ran into the damage on the left side. The power steering fluid was low, but since there was still some fluid left in the reservoir the power steering would have continued to function.

[88] PC Pecchia observed that the Nissan’s aluminum left front lower control arm was broken. He explained that the lower control arm “holds the bottom end suspension”, and that if broken this would negatively affect the steering and the driver’s ability to control the vehicle.

[89] PC Pecchia initially attributed the break to the accident, explaining that “there was no rust or any kind of oxidation on the parts to indicate to me that they were previously cracked or … broken”. However, he eventually agreed in cross-examination that he could not tell for sure whether the control arm had been sheared in the collision or broken because of metal fatigue. He also agreed that a microscopic examination might have been able to determine whether the break was caused by the impact or by metal fatigue, but that this testing was not done.

[90] The left front tire was blown out and had come off the rim. Since the tire had been driven on for several kilometres while flat and was very badly damaged, PC Pecchia could not determine what had caused it to blow out in the first place. The tread depth on the tire was low, but still above minimum safety standards, and this would not have affected the Nissan’s handling on dry roads.

[91] PC Pecchia did not agree that there was any correlation between low tire tread depth and the risk of a tire blowing out. However, the officer who examined the Harley-Davidson, PC Owayda, agreed that tire blowouts are more likely if a tire is in poor condition, and that low tread depth is accordingly a potential risk factor with respect to blowouts. Sgt. Cadieux declined to weigh in on this issue, explaining that he was not a tire expert and did not know the correct answer.

L. Stephen Middleton and Ajiththan Vijayanathan’s evidence

[92] While Mr. Sweeney was on the phone with the 911 operator, the YRP dispatcher began receiving reports of a damaged vehicle parked on the side of Highway 7, east of York-Durham Line. One of these reports was called in by Stephen Middleton, an off-duty tow truck driver who was driving his own personal vehicle that evening. Mr. Middleton pulled up in front of Mr. Coates’s Nissan SUV. He also made a radio call to an on-duty tow truck driver named Ajiththan Vijayanathan, who then arrived in a tow truck and parked behind the Nissan.

[93] A police officer named PC Clarke broadcast a radio call reporting:

I’ve just got a passerby says that car that hit this gentleman is just east of York-Durham Town Line. The guy’s hammered.

PC Clarke explained further that he was getting this information from “one of the tow truck drivers that I’m talking to right now”. It can be inferred that he must have been speaking to Mr. Middleton.

[94] The parties agreed that Mr. Middleton’s preliminary inquiry testimony transcript would be adduced for truth of its contents on the Charter application, and also agreed to have the evidence from the Charter application become part of the trial record. Mr. Middleton then also testified as a witness in the trial proper, where he substantially adopted his preliminary inquiry evidence.

[95] Mr. Middleton testified that when he arrived at the place where the Nissan was parked at the roadside Mr. Coates was already out of the vehicle. He responded to questions from Mr. Middleton by saying that he was okay and that there was nobody else in the vehicle. The Nissan was badly damaged, and Mr. Middleton was concerned that it might catch on fire, so he tried to open the driver’s side door to switch off the ignition. The door was locked, and Mr. Coates told him “not to worry about it”.

[96] Mr. Middleton testified that he thought he remembered smelling alcohol on Mr. Coates’s breath, but explained that he was not sure of this because at the time he had had nasal polyps that sometimes affected his sense of smell. Mr. Middleton explained further that he thought Mr. Coates’s behaviour “wasn’t normal” compared to how most people who had been in accidents usually acted, because he was giving only short, one-word answers to Mr. Middleton’s questions and not engaging in conversation. However, Mr. Middleton acknowledged in cross-examination that he became angry and “berated” Mr. Coates for having hit a motorcyclist, which Mr. Coates had either denied or had responded that he did not know what he had hit.

[97] Mr. Middleton testified that at the time he “assumed that [Mr. Coates] was 100% intoxicated”, and agreed that he had said this to the police dispatcher. However, he also acknowledged in cross-examination that he really had no more than a suspicion that Mr. Coates was impaired, and that his suspicion was based on how Mr. Coates had responded to his questions.

[98] Mr. Vijayanathan was not called as a witness at trial, but on consent of the parties transcripts of his December 20, 2019 police statement and his January 6, 2021 preliminary inquiry testimony were adduced for the truth of their contents. Mr. Vijayanathan testified at the preliminary inquiry that he had seen Mr. Middleton berating Mr. Coates, but that Mr. Coates had just stood there and had not responded.

[99] Mr. Middleton testified further that while he was on the phone with the YRP dispatcher he saw Mr. Coates also speaking on his own phone. He thought that Mr. Coates made three phone calls, but he only overheard part of one of these calls, during which Mr. Coates told the other person on the call “to hurry up and to come quick”. Mr. Middleton estimated that this was approximately 15 minutes before the police arrived.

[100] Mr. Coates’s phone records show that starting approximately four minutes after the accident, between 7:18 p.m. and 7:40 p.m., he made five outgoing phone calls. Three were to a 289-240-1979 number. The other two calls were to a 905-621-5527 number that was also registered in his name, and which the phone records show was roaming in the United States at the time.

[101] Mr. Middleton testified further that at some point he saw a black SUV pass by going westbound, then return going eastbound, and then come back going westbound. After passing the third time it pulled over onto the north shoulder, at which point the police arrived. He was cross-examined at length about whether the in-car video from the first police cruiser to arrive at the scene shows an SUV or a sedan pulled over on the north side of the road. He did not agree with the suggestion that the vehicle shown on the video was a sedan, and in re-examination offered the opinion that it was a Mercedes ML-350 SUV, although it is silver rather than black in colour.

M. The police response and Mr. Coates’s arrest

[102] As I have already mentioned, the parties agreed that the evidence presented on the pre-trial Charter application would become part of the record on the trial proper. I will adopt the detailed summary of this evidence in my previous Charter ruling. Some of the witnesses who gave evidence on the Charter application also testified at trial, but none of these witnesses’ trial testimony contradicted their earlier evidence.

[103] PC Pavol Zec was dispatched to find the parked vehicle. When he drove past the accident scene he stopped and spoke to Sgt. Dana Cuff to get information about the whereabouts of the witness who had reported seeing a vehicle at the side of the road. He told Sgt. Cuff:

OK, cause I’m going to be arresting this guy, transport him, so I’ll get Randy [another officer] to deal with that, then.

[104] Meanwhile, PC Clarke, who was now following the ambulance that was taking Mr. Sweeney to Sunnybrook Hospital, made a radio call that he addressed to the “unit going to the drunk driver”.

[105] PC Zec continued driving east along Highway 7, speeding up when the YRP dispatcher made a radio broadcast advising: “We’re getting another call that this male party is trying to take off from our citizen helpers”.

[106] He arrived a short while later at the place where Mr. Coates’s SUV was parked at the roadside, with Mr. Middleton’s car parked directly ahead and Mr. Vijayanathan’s tow truck parked behind. It was now 7:59 p.m. The in-car video recording from PC Zec’s cruiser shows Mr. Coates and Mr. Middleton standing beside the driver’s side door of the Nissan. PC Zec can then be heard on the audio track opening his door and asking: “Where’s the driver?”, to which Mr. Middleton replies: “Right there. 253, 100%”.

[107] In his trial testimony Mr. Middleton adopted his evidence at the preliminary inquiry that “253” is a towing industry radio code for “impaired driver” – evidently referring to the previous Criminal Code section number for the impaired driving offence – and that he had used the phrase earlier when speaking to the police dispatcher. He did not remember making this comment to PC Zec, but after listening to the recording he agreed that he had said it.

[108] PC Zec explained in his evidence on the Charter application that the expression “253” would have meant nothing to him at the time, since he mainly worked at a desk job and had only limited experience with impaired driving cases. He testified that he instead recalled Mr. Middleton saying: “He’s hammered”. After listening to his in-car camera’s audio recording, which does not reveal Mr. Middleton or anyone else speaking these words, PC Zec explained that he now “remember[ed] his lips saying that in a whispering voice”.

[109] PC Zec then asked: “this guy’s the driver?”, and Mr. Middleton replied: “Yes, he’s the one that hit the bike up the street”. PC Zec can then be seen on the in-car recording walking in front of his cruiser towards Mr. Coates and Mr. Middleton. A few seconds later a noise can be heard that PC Zec identified as the sound of him putting handcuffs on Mr. Coates’s wrists. Some 12 seconds passed between when PC Zec first got out his cruiser and when he handcuffed Mr. Coates.

[110] According to PC Zec, when he first observed Mr. Coates at the roadside he saw him swaying, noticed that he had “drowsy eyes”, and smelled alcohol on his breath, all of which led PC Zec to conclude that Mr. Coates was impaired by alcohol.

[111] Mr. Coates’s post-arrest interactions with PC Zec and other officers at the police station are summarized in my earlier Charter ruling. Mr. Coates said very little, responding to direct questions by giving very short answers, often no more than “Yes” or “No”.

N. Sgt. Cuff’s meeting with Mr. Coates’s parents

[112] Sgt. Cuff testified that at around 8:16 p.m. she had gone to the west of the accident scene to stop eastbound traffic. She was in her cruiser talking on the phone with the head of the YRP’s Major Collision Investigation Unit, Det. Sgt. Chi Bhatt (now Insp. Bhatt) when a man knocked on her car window. The man was in his late 50s or early 60s and had a thin face. He told Sgt. Cuff that he thought his son had been involved in an accident, and gave his son’s name as Nathan Coates. The man went back to his vehicle and Sgt. Cuff returned to her phone call, at which point Det. Sgt. Bhatt told her that Nathan Coates was the man who had recently been arrested, and that he was a YRP officer.

[113] Sgt. Cuff then went to speak to the man in his vehicle and he identified himself as Edward Coates and gave her a phone number, 905-903-2650. Nathan Coates’s phone records show two voice calls between his own phone and this phone number, the first an incoming call at 7:56 p.m. that lasted for 74 seconds, and the second an outgoing call at 7:58 p.m. that lasted for 40 seconds.

[114] Sgt. Cuff recalled there also being a woman in the car who she thought was Edward Coates’s wife. She initially testified that this woman had identified herself as “Doris”, but acknowledged in cross-examination that she was mistaken, and that the only woman Sgt. Cuff met that night named Doris was Mr. Sweeney’s mother.

IV. General principles

[115] The Crown bears the burden of proving Mr. Coates’s guilt beyond a reasonable doubt. He is not required to prove his innocence.

[116] The Supreme Court of Canada has explained that a reasonable doubt is not an imaginary or frivolous doubt, or one based upon sympathy or prejudice, but is a doubt based on reason and common sense that is logically derived from the evidence or absence of evidence. It is not sufficient for me to conclude that Mr. Coates is probably guilty of a charged offence to enter a verdict of guilty on that count. Although I do not have to be absolutely certain of his guilt, the standard of proof beyond a reasonable doubt “falls much closer to absolute certainty than to proof on a balance of probabilities”: R. v. Starr, 2000 SCC 40, at para. 242.

[117] In short, to find Mr. Coates guilty on any of the counts against him, I must be sure, based on all the evidence before me, that he committed all of the essential elements of the offence charged in that count.

[118] Mr. Coates chose to testify in his own defence only in relation to the fail to stop charge, while maintaining his right not to be compelled to testify on the other counts. This does not affect the location or the burden of proof on either set of charges.

[119] However, as I will discuss later, some special considerations apply in relation to the defence of automatism, which arises from the evidence adduced by the defence on the fail to stop charge.

[120] One implication of the Crown bearing the burden of proving Mr. Coates’s guilt on the high criminal standard of proof is that evidence that supports the defence may contribute to a reasonable doubt even if I do not affirmatively accept the evidence as truthful or reliable. This applies not only to the evidence that the defence presented on the fail to stop charge, but to evidence that emerged during the Crown’s own case that favours the defence position on disputed material issues.

[121] I must also caution myself not to place undue reliance on my impressions of any witness’s testimonial demeanour. As the Ontario Court of Appeal has observed, “while demeanour is a relevant factor in a credibility assessment, demeanour alone is a notoriously unreliable predictor of the accuracy of evidence given by a witness”: Law Society of Upper Canada v. Neinstein, 2010 ONCA 193, at para. 66.

[122] The quality of witnesses’ evidence is also not determined by how well they testify. Witnesses who present poorly while testifying may still be giving honest and reliable evidence. Moreover, while a witness’s history of lying is unquestionably important, it is not necessarily determinative. A witness who has lied before, even repeatedly, may now be telling the truth.

[123] Ultimately, the best test of witnesses’ credibility and reliability is to consider how their evidence fits together with the other evidence that is either objectively reliable or that I can otherwise be satisfied is true and accurate. As Karakatsanis J., then a judge of this Court, observed in Cuthbert v. TD Canada Trust, 2010 ONSC 830, at para. 42, “[c]redibility is best tested against common sense, inherent consistency and consistency with contemporaneous and undisputed documents.”

[124] As Feldman J.A. noted in R. v. Hoohing, 2007 ONCA 577, at para. 15:

The evidence of any witness, including an accused, may be believable standing on its own, but when other evidence is given that is contradictory, or casts doubt on the accuracy or reliability of the witnesses’ evidence, that evidence may no longer be believable, or in the case of an accused, may no longer raise a reasonable doubt.

V. The Charges on the First Indictment (Counts 1 and 3)

[125] As I have previously noted, I have already entered a directed verdict of not guilty on the “over 80” charge in Count 2 on the first indictment.

[126] As I have also already explained, the fail to stop charge in Count 4 of the first indictment has been severed from the other counts, and Mr. Coates is now being tried separately on this charge on a new indictment.

[127] This leaves two unresolved charges remaining on the first indictment: the impaired operation causing bodily harm charge in Count 1, and the dangerous driving causing bodily harm charge in Count 3.

A. Count 1: Impaired operation of a conveyance causing bodily harm

[128] Section 320.14(1) of the Criminal Code makes it an offence for a person to operate a “conveyance”, defined in s. 320.11 to include a motor vehicle, “while the person’s ability to operate it is impaired to any degree by alcohol or a drug or by a combination of alcohol and a drug”.

[129] Section 320.14(2) then states further that:

320.14 (2) Everyone commits an offence who commits an offence under subsection (1) and who, while operating the conveyance, causes bodily harm to another person.

[130] Count 1 charges Mr. Coates with committing the offence under s. 320.14(2) while committing an offence under s. 320.14(1). Put more simply, he is charged with causing bodily harm to Mr. Sweeney by operating a conveyance while he was impaired by alcohol or a drug.

[131] Some of the essential elements of this offence are undisputed. Mr. Coates acknowledges that he was driving a motor vehicle, which is a form of “conveyance”. He also acknowledges that the collision between his vehicle and Mr. Sweeney’s motorcycle caused Mr. Sweeney to suffer bodily harm. For its part, the Crown does not suggest that there is any evidence that Mr. Coates had consumed any potentially impairing drugs other than alcohol.

[132] Mr. Coates’s liability on Count 1 accordingly turns on whether the evidence proves beyond a reasonable doubt that his ability to drive at the time of the accident was “impaired to any degree by alcohol”.

[133] It is not Mr. Coates’s burden to prove that he was not impaired, but the Crown’s burden to affirmatively prove beyond a reasonable doubt that he was impaired at the time of the accident. To decide whether the Crown has met its burden, I must consider all the evidence together.

1. The evidence bearing on the issue of impairment

[134] There are three main bodies of direct evidence bearing on the question of Mr. Coates’s alcohol consumption and degree of impairment, and a fourth body of circumstantial evidence.

a) Evidence from Mr. Coates’s softball teammates

[135] First, three of Mr. Coates’s softball teammates testified that he drank at least some alcohol during the afternoon while they were all together at Milliken Mills Park. However, none of these witnesses specifically recalled Mr. Coates having more than two drinks:

Kaveh Haleky testified that he and Mr. Coates both drank some rum mixed with Gatorade while they played their softball game, and that Mr. Coates then had a beer in the early afternoon, after the game finished;
Andy Trinh recalled seeing Mr. Coates drinking rum with Mr. Haleky and a third teammate, Rick, in the parking lot, but did not notice how much Mr. Coates drank;
Fernando Su, who left the park earlier than the other two witnesses, recalled Mr. Coates and his other teammates who had stayed behind at the park having a toast with rum in the parking lot at around 3:00 or 3:30 p.m.

[136] Notably, each of these three witnesses contradicted the other two on various material points. To give a few examples, Mr. Trinh recalled Mr. Coates and Mr. Haleky drinking rum in the parking lot with their teammate Rick, but Mr. Haleky testified that Rick was the only one who was drinking rum, and Mr. Su did not see this at all. Mr. Su was the only witness who remembered the teammates who stayed behind at the park having a toast with rum in the parking lot to celebrate the end of the season. However, Mr. Su did not recall anyone drinking beer that afternoon, which is something Mr. Haleky and Mr. Trinh both remember.

[137] While I do not think that any of the three witnesses were trying to mislead me, I do not consider any of them to be especially reliable historians when it comes to remembering how much anyone, including Mr. Coates, drank that afternoon. None of them had any real reason to be paying close attention to Mr. Coates’s alcohol consumption.

[138] To the limited extent that I can resolve the conflicts in their evidence, I accept Mr. Haleky’s evidence that he brought beer for his teammates to share, and that Mr. Coates drank one of these beers after the softball game. I also accept his uncontradicted account of how he and Mr. Coates both mixed rum and Gatorade and drank the mixture while they played their softball game.

[139] I have more difficulty resolving the disagreement between these witnesses about who drank rum in the parking lot, and under what circumstances. I am ultimately not satisfied that any of their memories are sufficiently reliable to allow me to draw any firm conclusions about exactly how much alcohol Mr. Coates had to drink that afternoon.

[140] Importantly, however, all three witnesses agreed that they did not notice any signs that Mr. Coates was drunk, as Mr. Trinh and Mr. Haleky both did with their teammate Rick. This accords with Sgt. Cadieux’s evidence that he could not observe any problems with Mr. Coates’s manner of driving on the video recordings that showed the Nissan leaving the park area at around 7:00 p.m. that evening.

[141] In summary, the testimony of Mr. Coates’s three softball teammates does not exculpate him entirely. Their evidence leaves open the possibility that he could have consumed more alcohol that afternoon than any of them either observed or can now remember. It at least possible that Mr. Trinh is correct about seeing Mr. Coates drinking rum in the parking lot in the late afternoon, after Mr. Su had left the park, and that Mr. Haleky has simply forgotten that this happened, even though on Mr. Trinh’s evidence he was one of the participants.

[142] Moreover, the witnesses’ evidence that they did not notice Mr. Coates exhibiting any signs of impairment before he left the park that evening does not rule out the possibility that he was impaired, but that he was concealing his condition better than his teammate Rick, who drank to the point of passing out.

[143] However, viewing this evidence in the most favourable light for the Crown, the most that can be said is that it does not rule out the possibility that Mr. Coates might have consumed enough alcohol to make him impaired. It does not affirmatively show that he was impaired. To the contrary, the affirmative evidence only shows that his drinking that afternoon was modest; that it may have ended several hours before he left the park; and that when he left he was not showing any signs of impairment that anyone else noticed.

[144] Even if I discount some or all of this evidence as potentially unreliable, I cannot treat it as affirmatively establishing the opposite of what the witnesses said they remembered.

b) Evidence about Mr. Coates’s presentation at the roadside after the accident

[145] The second body of direct evidence on the issue of impairment comes from the witnesses who saw Mr. Coates at the roadside after the accident.

[146] Stephen Middleton made several statements to the police that night in which he forcefully and confidently expressed his opinion that Mr. Coates was intoxicated. He told PC Clarke on the phone that Mr. Coates was “hammered”, and then told PC Zec at the roadside that Mr. Coates was “253, 100%”, by which he apparently meant to convey that he was 100% sure that Mr. Coates was impaired.

[147] However, at trial Mr. Middleton resiled almost entirely from his previously-stated opinion. He testified that the only sign of impairment he observed in Mr. Coates was his reluctance to answer questions, which Mr. Middleton found peculiar. He was no longer sure if he had smelled alcohol on Mr. Coates’s breath. Mr. Middleton agreed with defence counsel’s suggestion that he had no more than a suspicion that Mr. Coates might have been intoxicated.

[148] Ajiththan Vijayanathan’s police statement and evidence at the preliminary inquiry, which were adduced for their truth at trial, is essentially neutral. Mr. Vijayanathan stayed in his tow truck and did not interact with Mr. Coates at all. He agreed that he did not see any signs of impairment and had no idea if Mr. Coates was impaired or not.

[149] The third and final witness who saw Mr. Coates at the roadside was the arresting officer, PC Zec, who testified both on the Charter application and at the trial proper. The parties agreed that his evidence on the Charter voir dire would become part of the trial record along with his trial testimony.

[150] On its face, PC Zec’s evidence supports the Crown on the issue of Mr. Coates’s impairment. He testified that when he first approached Mr. Coates at the roadside he saw him swaying, noticed that he had “drowsy eyes”, and when he got closer to him smelled alcohol on his breath. These are all potential indicia of impairment by alcohol. However, as I will discuss further shortly, I have significant reservations about PC Zec’s testimonial reliability.

[151] I also had the opportunity to watch Mr. Coates as he appears on PC Zec’s in-car camera recording. He does not exhibit any visible signs of impairment, such as coordination difficulties. Mr. Coates says very little on the recording, but on the few occasions he speaks his voice sounds normal and his words are not noticeably slurred.

c) Evidence about how Mr. Coates presented while at 5 Division

[152] The third body of direct evidence comes from the police officers who interacted with Mr. Coates after he was arrested and brought to the 5 Division police station. Staff Sgt. Chris Lewis was the senior officer in charge of the station that night and booked Mr. Coates when he first arrived. He testified at trial that he did not notice anything that caused him any concerns about Mr. Coates’s orientation or mental state. While both counsels’ questioning of Staff Sgt. Lewis was focused on whether Mr. Coates showed any signs of medical distress, I think Staff Sgt. Lewis’s evidence also bears on the issue of whether Mr. Coates was showing any signs of impairment by alcohol. Staff Sgt. Lewis, who impressed me as a credible and reliable witness, evidently did not notice any such signs.

[153] PC Chad Scott, the breath technician who administered the breath test to Mr. Coates, testified both on the Charter application and at trial, and the parties have agreed that his evidence on both occasions should form part of the trial record. PC Scott did not notice Mr. Coates having any coordination difficulties while he was in the breath room, although he did smell alcohol on Mr. Coates’s breath and noticed that his eyes were slightly bloodshot.

[154] I was also able to make my own observations of the booking video and the video recording from the breath room. Neither shows Mr. Coates exhibiting any visible signs of impairment, such as coordination difficulty or slurred speech.

d) Circumstantial evidence

[155] Circumstantial inferences can also be drawn from the fact of the accident itself, and from Mr. Coates’s actions afterwards.

[156] It is clear from the physical evidence that Mr. Coates’s vehicle crossed the centre line and struck Mr. Sweeney’s motorcycle in the oncoming lane. This is certainly consistent with the possibility that Mr. Coates’s ability to drive was impaired by alcohol. However, the fact of the accident does not strongly support the inference of impairment, since a review of the case law suggests that accidents on curves in which one vehicle crosses the centre line are not uncommon, even when alcohol is not a contributing factor: see, e.g., R. v. Beatty, 2008 SCC 5, [2008] 1 S.C.R. 49; R. v. Baker, 2013 ONCA 746.

[157] As I explained at paras. 73-75 of my Charter ruling, Mr. Coates’s actions in driving away from the accident scene rather than immediately pulling over to the side of the road also potentially supports the inference of impairment in two analytically distinct ways:

First, [Mr. Coates’s] failure to remain at the scene after the collision supports the inference that he may have believed that he was facing some legal jeopardy and was for that reason trying to flee. While a driver who had not been drinking that night might still have believed that he or she was in legal trouble, a driver who had been drinking would have had an especially strong reason to try to delay being apprehended for as long as possible, to allow his body to clear the alcohol from his system. …

Second, the driver’s behaviour in leaving the scene supports the inference that he may not have been thinking clearly. … It can reasonably be inferred that a sober driver would have been more likely to recognize that trying to flee in an undriveable vehicle would not succeed.

Neither of these inferences are dispositive, since there are other possible reasons why a non-impaired driver might leave an accident scene or exhibit signs of disordered thinking, including the possibility that the driver is in shock or has sustained an injury.

2. Analysis

[158] I am not satisfied that this evidence, considered cumulatively, permits me to find on the high criminal standard of proof that Mr. Coates was impaired by alcohol at the time of the accident.

[159] First, I am not prepared to place any significant weight on PC Zec’s testimony, which is the strongest single piece of evidence supporting the conclusion that Mr. Coates was impaired. As I noted in my previous Charter ruling, at para. 66:

[PC Zec] was in many respects a problematic witness. He was defensive and combative during cross-examination, seeming to approach most questions that were put to him as if he sensed a trap. Of particular concern, PC Zec seemed intent on walking back much of his evidence at the preliminary inquiry, where he had frequently agreed that suggestions put to him by defence counsel were “fair”. He explained in his voir dire testimony that he had only meant by this that these suggestions were possible, not that he agreed with them. I do not find this explanation very plausible, and formed the impression that PC Zec was trying to adjust his evidence to bolster what he understood to be the Crown’s position on this Charter application.

[160] I explained further at paras. 78-79 that I did not accept PC Zec’s evidence that when he first arrived at the place at the roadside where Mr. Coates’s SUV was parked and got out of his cruiser, Mr. Middleton whispered “he’s hammered”, but spoke too quietly for his words to be picked up by PC Zec’s in-car camera. The recording system did capture Mr. Middleton saying “253, 100%”, which PC Zec did not remember him saying. I concluded at para. 79 that in relation to the “he’s hammered” comment:

PC Zec probably honestly believed when he first came to court that Mr. Middleton had said these words to him, at least up until the time that he saw and heard the in-car camera recording in court, for what was apparently the first time. In my view, the most likely explanation for why PC Zec thought Mr. Middleton said this is that he has conflated what he heard on the earlier radio call from PC Clarke with what he now remembers Mr. Middleton saying to him when he first arrived at the scene where the van was parked.

[161] The concerns I previously expressed about the reliability of PC Zec’s evidence have not abated. Seeing him testify again at trial did not change my opinion that he is not a reliable witness. While I would not go so far as to brand PC Zec dishonest, I continue to have significant reservations about the factual accuracy of his evidence.

[162] These reservations extend to PC Zec’s testimony about his observations of Mr. Coates at the roadside. As I explained at paras. 85-86 of my earlier Charter ruling:

First, his interaction with Mr. Coates before he arrested him was extremely brief, lasting no more than about twelve seconds. Even more troubling, PC Zec’s comments to A/Sgt. Cuff at the accident scene a few minutes earlier suggest that he had already made up his mind ahead of time that he would arrest Mr. Coates as soon as he found him. On all the evidence, I am not confident that PC Zec really made any serious attempt to look for indicia of impairment before he arrested Mr. Coates. Based on the in-car camera video, if PC Zec had exited his cruiser with the intention of arresting Mr. Coates already full formed in his mind, it is difficult to see how he could have carried out the arrest any more quickly than he actually did. PC Zec essentially makes a beeline for Mr. Coates and immediately handcuffs him.

Second, some of the observations PC Zec says he made are difficult to reconcile with the other evidence that has been adduced on the voir dire. His claim that he noticed Mr. Coates briefly swaying, whether from side to side or front to back, is hard to square with the in-car camera video and the video from 5 Division, both of which show Mr. Coates exhibiting no signs of unsteadiness on his feet. PC Scott also observed no unsteadiness or other physical coordination difficulties when he later saw Mr. Coates in the breath room. Moreover, PC Zec’s evidence that he noticed that Mr. Coates’s eyes were glossy and droopy is at odds with PC Scott’s observation that his eyes were slightly bloodshot but otherwise normal. Although PC Zec’s further evidence in his voir dire testimony that he also noticed that Mr. Coates’s eyes were red does accord with PC Scott’s own observations in the breath room, the reliability of this part of PC Zec’s evidence is badly undermined by his apparent failure make a contemporaneous note of this detail, or mention observing it when he testified at the preliminary inquiry.

[163] This second set of concerns is heightened on the expanded evidential record at trial, since PC Zec’s evidence is now also undermined by the testimony of Staff Sgt. Lewis, who also did not notice Mr. Coates having any coordination problems when he interacted with him at the police station front desk. I had previously reviewed the booking video recording when it was played during the Charter voir dire, but did not hear from Staff Sgt. Lewis until he testified at trial. He might have been able to see signs of impairment from his vantage point at the booking desk that would not have been apparent to me from watching the video recordings. However, he did not describe making any such observations.

[164] I cannot entirely rule out the possibility that PC Zec really did see Mr. Coates displaying signs of impairment before he arrested him, even though he only had approximately 12 seconds, and perhaps less, to make these observations. I am also mindful that unlike most of the other witnesses who observed Mr. Coates that night, PC Zec had the advantage of knowing Mr. Coates as a work colleague, although he did not know him especially well. As I noted at para. 87 of my Charter ruling, “I recognize that this may have better equipped PC Zec to observe subtle and perhaps difficult to describe signs of impairment in Mr. Coates that evening”. See also Graat v. The Queen, 1982 CanLII 33 (SCC), [1982] 2 S.C.R. 819, at p. 837. I would add that Staff Sgt. Lewis also knew Mr. Coates reasonably well, since they had at one point earlier in their careers both worked in the same unit.

[165] However, I also think that there is a substantial risk that PC Zec’s observations and recollections were influenced by confirmation bias. Based on the radio reports PC Zec heard while he was driving to the scene, he was expecting to find a drunk driver. I am satisfied that even before he got to where Mr. Coates’s SUV was parked at the roadside he had already decided that he would arrest the driver, which is what he told Sgt. Cuff he was going to do. I think that there is a strong possibility that when PC Zec got out of his car and walked towards Mr. Coates, he simply saw what he was already expecting to see.

[166] I do accept PC Zec’s evidence that he smelled alcohol on Mr. Coates’s breath, as PC Scott also did in the breath room. However, I am not prepared to place any substantial weight on his evidence that he also noticed Mr. Coates to be unsteady on his feet, which is something no other observer saw, and which is not apparent on any of the video recordings. Nor am I prepared to place any weight on PC Zec’s evidence that Mr. Coates had “droopy eyes”, which none of the other people who saw him that night noticed, and which cannot be seen on any of the video recordings, some of which include closeup shots of Mr. Coates’s face.

[167] The rest of the evidence, in my view, falls short of proving beyond a reasonable doubt that Mr. Coates was impaired by alcohol.

[168] Mr. Middleton’s evidence does virtually nothing to support the conclusion that Mr. Coates was impaired by alcohol. There are many other reasons why Mr. Coates might have been reluctant to engage in conversation with Mr. Middleton, particularly since Mr. Middleton acknowledged that he was upset with Mr. Coates for having apparently left the accident scene and was angrily berating him.

[169] The evidence of Mr. Coates’s softball teammates is at least somewhat exculpatory, insofar as none of them noticed him displaying any signs of impairment up to the point that they all left the park. While they all agreed that Mr. Coates drank at least some alcohol at some points during the afternoon, their evidence about when and what he drank is mutually contradictory. I am not able to resolve the conflicts between their evidence in a manner that assists the Crown. The most I can say is that their evidence leaves open the possibility that Mr. Coates could have had more to drink than any of the witnesses can now positively remember.

[170] In particular, Mr. Trinh’s evidence about Mr. Coates, Mr. Haleky and Rick all drinking rum together in the parking lot may well be accurate. However, it is also possible that Mr. Haleky’s recollection that Rick was the only one drinking rum is correct. Mr. Trinh and Mr. Haleky both impressed me as honest witnesses who were doing their best to tell the truth, and I have no objective basis for preferring Mr. Trinh’s evidence over Mr. Haleky’s evidence on this point.

[171] The evidence of Mr. Coates’s presentation at 5 Division tends to weigh against the inference of impairment. None of the officers who interacted with him at the station saw any indicia of impairment, beyond PC Scott smelling alcohol on Mr. Coates’s breath, and there are no signs of impairment observable on the video recordings.

[172] Finally, I do not think the circumstantial evidence in this case moves the needle to the degree necessary to establish beyond a reasonable doubt that Mr. Coates was impaired. While it is reasonable to suppose that an impaired driver will have an especially strong motive to flee an accident scene, because fleeing might give him or her time to sober up, it does not follow that a driver who is not impaired might not also panic and flee. A perfectly sober driver who had just hit an oncoming motorcycle after crossing into its lane might reasonably think that he or she faced serious legal jeopardy.

[173] Equally, while Mr. Coates’s decision to drive away from the accident scene in a badly damaged vehicle is certainly consistent with the hypothesis that he was not thinking clearly because his judgment was impaired by alcohol, it is not inconsistent with other reasonable possibilities. As I noted in my Charter ruling at para. 74, “[i]t can reasonably be inferred that a sober driver would have been more likely to recognize that trying to flee in an undriveable vehicle would not succeed”. However, this does not mean that every sober driver would immediately realize that fleeing the accident scene would fail. It also cannot be assumed that Mr. Coates would necessarily have realized just how badly his SUV had been damaged in the collision until after he had driven it for some distance.

[174] As Cromwell J. explained in R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 35:

The issue with respect to circumstantial evidence is the range of reasonable inferences that can be drawn from it. If there are reasonable inferences other than guilt, the Crown’s evidence does not meet the standard of proof beyond a reasonable doubt.

[175] In this case, the inference that Mr. Coates was impaired by alcohol is certainly available. It is entirely possible that he had more to drink that afternoon than any of his softball teammates noticed or can now remember. He might have been impaired without showing any obvious signs of impairment, either to his teammates or to the officers who later saw him at the police station. PC Zec might perhaps have been the only witness who accurately noticed subtle indicators of impairment in Mr. Coates, and might have drawn the right conclusion about his sobriety.

[176] It is also entirely possible that Mr. Coates may have crossed the centre line and hit Mr. Sweeney and his motorcycle at least in part because he was impaired. He might have then decided to try to flee the accident scene because he knew that he had been drinking and that he faced serious legal jeopardy that would put his career as a police officer at risk, and perhaps because he was too intoxicated to realize that fleeing would probably not work and would only compound his legal problems.

[177] However, these are not the only reasonable inferences that are available on the entirety of the admissible evidence. It is also possible on the evidential record that Mr. Coates only had a few drinks during and after the softball game, in plenty of time for him to no longer be feeling their effects when he left the park at 7:00 p.m. It is possible that when PC Zec formed the opinion that Mr. Coates was impaired, he was merely jumping to an unsupported conclusion that fit his preconceptions. Mr. Coates’s teammates and the other police officers who saw him at the station may have observed no signs of impairment because there were none to see. Finally, the accident might well have happened for reasons unrelated to Mr. Coates’s level of sobriety, and that he then made an ill-considered decision not to stop and to drive away in his damaged vehicle, even though he was sober.

[178] To properly find Mr. Coates guilty on this count, I must be sure of his guilt. On the admissible evidence in this case, and taking the absence of evidence into account, I am unable to conclude to this high level of certainty that Mr. Coates’s ability to drive at the time of the accident must have been impaired by alcohol. I must accordingly find him not guilty on Count 1.

B. Count 3: Dangerous Driving Causing Bodily Harm

1. The essential elements of the s. 320.13(2) offence

[179] Count 3 on the first indictment charges Mr. Coates with having operated a conveyance “in a manner that, having regard to all the circumstances, was dangerous to the public, and as a result, caused bodily harm to [Mr. Sweeney]”, contrary to s. 320.13(2) of the Criminal Code.

a) The continued validity of the s. 249(1) dangerous driving jurisprudence under s. 320.13(2)

[180] It is common ground between the parties that the legal principles that were originally developed by courts when interpreting the “dangerous driving” offence in what was then s. 249 of the Code continue to apply to the new s. 320.13(2) offence.

[181] Section 249 created a series of four different offences that each applied to different forms of transportation machinery, namely, motor vehicles, watercraft, aircraft, and railway equipment. Section 320.13(2) simplifies this scheme by creating a single offence that applies to all of these different forms of transport, which are collectively described as “conveyances”. The new offence requires courts to “have regard to all of the circumstances”, but no longer refers to the specific factors that were previously listed in s. 249(1)(a), some of which were only applicable to the operation of motor vehicles. The new provision also creates separate offences of dangerous operation of a conveyance causing bodily harm and causing death, rather than treating these consequences only as aggravating factors that increased the maximum sentence available.

[182] I agree with counsel that none of these changes affect the essential elements of the offence, and that the case law interpreting the s. 249(1)(a) “dangerous driving” offence remains controlling in relation to s. 320.13(2).

[183] As with Count 1, some elements of the offence charged in Count 3 are not in dispute. It is common ground that Mr. Coates was operating a motor vehicle – a form of “conveyance” under s. 320.11 – that collided with Mr. Sweeney’s motorcycle, and that the collision caused Mr. Sweeney to suffer serious bodily harm, including the loss of his left leg. The critical disputed question is whether the evidence establishes beyond a reasonable doubt that Mr. Coates had the necessary degree of objective fault.

b) The Supreme Court of Canada dangerous driving jurisprudence

[184] It is well-settled that the criminal offence of dangerous operation of a motor vehicle requires proof of more than mere civil negligence. The Crown must prove beyond a reasonable doubt not just that the accused failed to meet the standard of care that a reasonable person would be expected to observe in all the circumstances, but that he or she “markedly departed” from this standard of care.

[185] In her majority reasons for the Supreme Court of Canada in R. v. Beatty, at paras. 35-36, Charron J. followed the Court’s previous decision in R. v. Hundal, 1993 CanLII 120 (SCC), [1993] 1 S.C.R. 867, and explained:

In a criminal setting, the driver’s mental state does matter because the punishment of an innocent person is contrary to fundamental principles of criminal justice. The degree of negligence is the determinative question because criminal fault must be based on conduct that merits punishment.

For that reason, the objective test, as modified to suit the criminal setting, requires proof of a marked departure from the standard of care that a reasonable person would observe in all the circumstances. As stated earlier, it is only when there is a marked departure from the norm that objectively dangerous conduct demonstrates sufficient blameworthiness to support a finding of penal liability. With the marked departure, the act of dangerous driving is accompanied with the presence of sufficient mens rea and the offence is made out.

[186] In R. v. Roy, 2012 SCC 26, [2012] 2 S.C.R. 60, Cromwell J. followed and expanded on the analysis in Beatty, stating at paras. 1-2:

Dangerous driving causing death is a serious criminal offence punishable by up to 14 years in prison. Like all criminal offences, it consists of two components: prohibited conduct — operating a motor vehicle in a dangerous manner resulting in death — and a required degree of fault — a marked departure from the standard of care that a reasonable person would observe in all the circumstances. The fault component is critical, as it ensures that criminal punishment is only imposed on those deserving the stigma of a criminal conviction. While a mere departure from the standard of care justifies imposing civil liability, only a marked departure justifies the fault requirement for this serious criminal offence.

Defining and applying this fault element is important, but also challenging, given the inherently dangerous nature of driving. Even simple carelessness may result in tragic consequences which may tempt judges and juries to unduly extend the reach of the criminal law to those responsible. Yet, as the Court put it in R. v. Beatty, [supra,] at para. 34, “If every departure from the civil norm is to be criminalized, regardless of the degree, we risk casting the net too widely and branding as criminals persons who are in reality not morally blameworthy”. Giving careful attention to the fault element of the offence is essential if we are to avoid making criminals out of the merely careless.

[187] Under Beatty and Roy, the actus reus of the dangerous operation offence in s. 320.13 is met by proof that the accused operated a conveyance – which includes driving a motor vehicle – in a manner that was objectively dangerous to the public in all the circumstances. As Cromwell J. explained in Roy, at paras. 34-35:

In considering whether the actus reus has been established, the question is whether the driving, viewed objectively, was dangerous to the public in all of the circumstances. The focus of this inquiry must be on the risks created by the accused’s manner of driving, not the consequences, such as an accident in which he or she was involved. As Charron J. put it, at para. 46 of Beatty, “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” (emphasis added). A manner of driving can rightly be qualified as dangerous when it endangers the public. It is the risk of damage or injury created by the manner of driving that is relevant, not the consequences of a subsequent accident. In conducting this inquiry into the manner of driving, it must be borne in mind that driving is an inherently dangerous activity, but one that is both legal and of social value (Beatty, at paras. 31 and 34). Accidents caused by these inherent risks materializing should generally not result in criminal convictions.

To summarize, the focus of the analysis in relation to the actus reus of the offence is the manner of operation of the motor vehicle. The trier of fact must not simply leap from the consequences of the driving to a conclusion about dangerousness. There must be a meaningful inquiry into the manner of driving. [Underlining in original]

[188] The objective mens rea requirement requires proof of a marked departure by the accused from the standard of care that would be expected of a reasonable operator. As Cromwell J. explained in Roy, at paras. 36-38:

The focus of the mens rea analysis is on whether the dangerous manner of driving was the result of a marked departure from the standard of care which a reasonable person would have exercised in the same circumstances (Beatty, at para. 48). It is helpful to approach the issue by asking two questions. The first is whether, in light of all the relevant evidence, a reasonable person would have foreseen the risk and taken steps to avoid it if possible. If so, the second question is whether the accused’s failure to foresee the risk and take steps to avoid it, if possible, was a marked departure from the standard of care expected of a reasonable person in the accused’s circumstances.

Simple carelessness, to which even the most prudent drivers may occasionally succumb, is generally not criminal. As noted earlier, Charron J., for the majority in Beatty, put it this way: “If every departure from the civil norm is to be criminalized, regardless of the degree, we risk casting the net too widely and branding as criminals persons who are in reality not morally blameworthy” (para. 34). The Chief Justice expressed a similar view: “Even good drivers are occasionally subject to momentary lapses of attention. These may, depending on the circumstances, give rise to civil liability, or to a conviction for careless driving. But they generally will not rise to the level of a marked departure required for a conviction for dangerous driving” (para. 71).

The marked departure from the standard expected of a reasonable person in the same circumstances — a modified objective standard — is the minimum fault requirement. The modified objective standard means that, while the reasonable person is placed in the accused’s circumstances, evidence of the accused’s personal attributes (such as age, experience and education) is irrelevant unless it goes to the accused’s incapacity to appreciate or to avoid the risk (para. 40). Of course, proof of subjective mens rea — that is, deliberately dangerous driving — would support a conviction for dangerous driving, but proof of that is not required (Charron J., at para. 47; see also McLachlin C.J., at paras. 74-75, and Fish J., at para. 86).

c) What the Crown must prove

[189] Beatty and Roy make clear that the mere fact of an accident resulting from a defendant’s vehicle crossing the centre line into oncoming traffic does not automatically lead to the conclusion that the defendant’s driving markedly departed from the applicable standard of care. As Charron J. put it in Beatty, at para. 46, “[t]he 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”. See also Roy, at para. 34.

[190] In Beatty, the accused’s pickup truck had “for no apparent reason, suddenly crossed the solid centre line into the path of an oncoming motor vehicle, killing all three occupants”: Beatty, at para. 1. The trial judge found that this was due to a “few seconds of lapsed attention” by the accused.

[191] In her majority reasons in the Supreme Court of Canada, Charron J. emphasized that proof of a momentary lapse in attention, without more, will not establish a “marked departure” from the standard of care of a reasonable and prudent driver. She explained at paras. 52-53:

The trial judge appropriately focussed her analysis on Mr. Beatty’s manner of driving in all the circumstances. She noted that there was no evidence of improper driving before the truck momentarily crossed the centre line and that the “few seconds of clearly negligent driving” was the only evidence about his manner of driving (para. 36). She appropriately considered the totality of the evidence in finding that “the only reasonable inference” was that “he experienced a loss of awareness” that caused him to drive straight instead of following the curve in the road (para. 36). In her view, this momentary lapse of attention was insufficient to found criminal culpability. She concluded that there was “insufficient evidence to support a finding of a marked departure from the standard of care of a prudent driver” (para. 37).

Based on the totality of the evidence, I see no reason to interfere with the trial judge’s assessment of Mr. Beatty’s conduct in this case and her conclusion on Mr. Beatty’s criminal liability.

[192] It also cannot be automatically assumed that whenever a vehicle crosses into the oncoming lane this must have been due to the accused’s inattention, whether momentary or otherwise. The possibility must also be considered that some other factor outside the accused’s control, which he or she could not have reasonably anticipated or guarded against, may have caused his or her vehicle to depart from its proper lane. As Charron J. explained in Beatty, at para. 37:

The underlying premise for finding fault based on objectively dangerous conduct that constitutes a marked departure from the norm is that a reasonable person in the position of the accused would have been aware of the risk posed by the manner of driving and would not have undertaken the activity. However, there will be circumstances where this underlying premise cannot be sustained because a reasonable person in the position of the accused would not have been aware of the risk or, alternatively, would not have been able to avoid creating the danger.

[193] In summary, to obtain a finding of guilt on Count 3, the Crown must establish three things on the criminal standard of proof:

First, the Crown must prove the actus reus of the offence by establishing that Mr. Coates’s driving, viewed objectively, was dangerous to the public in all the circumstances;
Second, the Crown must prove that this objectively dangerous driving was due to Mr. Coates’s negligence, rather than resulting from some external factor that he could not reasonably have prevented or addressed, such as a sudden mechanical failure or a medical event;
Third, the Crown must prove that Mr. Coates’s negligence was of such a degree that his driving can be said to have “markedly departed” from the standard of care which a reasonable motorist would have exercised in the same circumstances.

[194] These last two issues are potentially interrelated, since in some cases a motorist’s negligent driving may leave him or her unable to deal with a sudden emergency that could have been handled by someone who had been driving in a more prudent manner.

2. Analysis

a) Actus reus

[195] I have little difficulty concluding that Mr. Coates’s driving was objectively dangerous in the circumstances that he found himself in.

[196] The evidence establishes that the collision occurred on Mr. Sweeney’s side of the road after Mr. Coates’s vehicle crossed the centre line.

[197] Crossing the centre line of a highway is not always objectively dangerous. For instance, a driver on a lightly travelled highway who crosses into the oncoming lane on a straightaway with clear visibility will often be able to do so safely, and in some situations may even have a positive obligation to do so, such as when there is an obstruction in the driver’s own lane or a disabled vehicle on the shoulder.

[198] However, I am satisfied that Mr. Coates crossed into the oncoming lane in circumstances where this was objectively dangerous. Highway 7 is a busy road. A reasonable driver in Mr. Coates’s position, heading east, would expect there to be oncoming westbound traffic, even on a Sunday evening. Moreover, I think a reasonable driver who is familiar with Ontario highways would expect that any oncoming vehicles would probably be travelling faster than the posted speed limit of 70 km/h, as Mr. Sweeney indeed seems to have been doing.

[199] The danger posed by Mr. Coates crossing the centre line was heightened by him doing so at a point where the road was curving to his right, and where his ability to see past the curve was obstructed by the woodland on the south side of the road. By the time he saw an oncoming vehicle, and its driver saw him, they would each have only a very short time to avoid a collision. This danger was exacerbated by the fact that Mr. Coates, like Mr. Sweeney, was driving faster than the posted speed limit.

[200] In Beatty, the British Columbia Court of Appeal had concluded on the evidence in that case that the actus reus of dangerous driving was established. Writing for the Court, Finch C.J.B.C. had concluded (2006 BCCA 229, at paras. 22-24):

In this case, there is no evidence that the respondent was speeding, no evidence that he had consumed alcohol or drugs, and no evidence that he was driving erratically or improperly at any time before his vehicle crossed into the oncoming lane of traffic.

However, the evidence showed that there was only one lane for travel in each direction, the traffic was proceeding at or near the posted speed limit of 90 kilometres per hour, the highway was well-travelled, there was limited visibility approaching the curve, and the collision occurred within a split second of the respondent’s crossing onto the oncoming lane of traffic.

Viewed objectively, the respondent’s failure to confine his vehicle to its own lane of travel was in “all the circumstances” highly dangerous to other persons lawfully using the highway, and in particular those approaching in a westerly direction on their own side of the road.

[201] In her majority reasons for the Supreme Court of Canada, Charron J. agreed with and adopted Finch C.J.B.C.’s analysis on these issues, stating at para. 51:

Up to this point in the analysis, I would agree with the Court of Appeal. In all the circumstances, Mr. Beatty’s failure to confine his vehicle to his own lane of traffic was dangerous to other users of the highway.

[202] I think the evidence in the case at bar leads to the same conclusion. As in Beatty, Mr. Coates was driving on a well-travelled highway and was approaching a curve with limited visibility, in circumstances where he and any oncoming driver would have only a split second to react if either of them crossed into the other’s lane.

[203] Unlike Mr. Beatty, Mr. Coates was also driving faster than the posted speed limit. He had also consumed at least some alcohol earlier that day, although as I have discussed, the evidence falls short of establishing beyond a reasonable doubt that he was impaired at 7:15 p.m.

[204] I am satisfied that, viewed objectively, Mr. Coates’s “failure to confine his vehicle to his own lane of traffic was dangerous to other users of the highway” in the circumstances. This is sufficient to make out the actus reus of the charged offence.

b) Mens rea

[205] The more difficult question is whether the Crown has proved that Mr. Coates had the requisite mens rea for dangerous operation of a conveyance.

[206] Even though Mr. Coates drove in an objectively dangerous manner when he crossed the centre line, more is required to establish that his driving “markedly departed” from the standard of care expected of a reasonable driver in the same circumstances. As Cromwell J. explained in Roy, at para. 42:

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

[207] The inference of criminal fault on Mr. Coates’s part cannot be drawn simply by reasoning backwards from the fact of the accident. Rather, to meet its burden on the issue of mens rea, the Crown must prove that Mr. Coates’s crossing the centre line markedly departed from the standard of care expected of a reasonable driver in the circumstances.

[208] Among other things, this requires the Crown to rule out the possibility that Mr. Coates’s SUV crossed into the oncoming lane because of some external event that a reasonably prudent driver would not have been able to prevent or address.

[209] The only direct evidence of how Mr. Coates was driving at the time of the accident comes from Mr. Sweeney. I am not satisfied that Mr. Sweeney is an entirely reliable witness. I do not say this to be critical of him, since I think it is completely understandable why he might not be able to accurately remember the events surrounding the accident. Nevertheless, his memory of where in the S-curve the collision occurred is plainly wrong, which raises the possibility that some of his other memories of the accident might also be inaccurate.

[210] Mr. Sweeney’s confusion about whether the Harley-Davidson had auto-dimming high beam headlamps is also concerning. He initially purported to remember that:

Even cat eyes on the road or … turn signs on the road when you would be going into a turn would actually give enough reflection that it would turn off the high beams.

However, when he continued testifying the next day, he acknowledged that he had been mistaken and that the motorcycle did not have auto-dimming high beams. This suggests that his positive and detailed memory of seeing this feature in action while riding was a confabulation.

[211] Because of my concerns about Mr. Sweeney’s testimonial reliability, I am not prepared to rely on his evidence as proving beyond a reasonable doubt that the accident occurred exactly as he described it. At the same time, I cannot entirely reject the possibility that his memory of how the collision occurred might be accurate. I must accordingly take his evidence into account when considering whether the evidence as a whole proves Mr. Coates’s guilt beyond a reasonable doubt.

[212] According to Mr. Sweeney, the collision occurred because Mr. Coates, who was travelling properly in his own lane when Mr. Sweeney first saw him, “quickly veered” into Mr. Sweeney’s lane just as their vehicles were about to pass one another. Put another way, Mr. Sweeney does not describe Mr. Coates as simply missing the curve and driving straight when the road bent to his right. Rather, on Mr. Sweeney’s evidence something happened that caused Mr. Coates’s SUV to suddenly depart from its own lane and swerve into Mr. Sweeney’s lane.

[213] If this is how the accident happened, it is certainly possible that Mr. Coates was responsible because he for some unknown reason suddenly jerked his steering wheel to the left. However, Mr. Sweeney’s evidence also raises the possibility that the SUV could have veered suddenly because of a mechanical event, such as a blowout of the driver’s side front tire.

[214] The evidence bearing on the issue of Mr. Coates’s mens rea is circumstantial. As Cromwell J. explained in R. v. Villaroman, in the passage at para. 35 that I have already quoted:

The issue with respect to circumstantial evidence is the range of reasonable inferences that can be drawn from it. If there are reasonable inferences other than guilt, the Crown’s evidence does not meet the standard of proof beyond a reasonable doubt.

Cromwell J. explained further that “[w]hen assessing circumstantial evidence, the trier of fact should consider ‘other plausible theor[ies]’ and ‘other reasonable possibilities’ which are inconsistent with guilt”, but which do not necessarily have to have any affirmative evidential support: Villaroman, at paras. 35-37.

[215] In this case, however, the possibility that Mr. Coates’s vehicle swerved because of a mechanical failure does have some evidential support.

[216] Dealing first with the possibility of a tire blowout, it is undisputed that the left front tire of the SUV did blow out at some point. This was very likely caused by the collision. However, the possibility also exists that the blowout may have preceded the collision, and that it was the blowout that caused the accident, rather than the other way around. The order of events cannot be ascertained from examining the tire itself, because the tire was very badly damaged after Mr. Coates drove on it for nearly four kilometres after it was flat.

[217] Sgt. Cadieux acknowledged that tire blowouts – a sudden failure of a sidewall that causes the tire to rapidly lose pressure – are known to happen without warning. He explained:

From experience, other than checking your vehicle to see if there’s any damages or bulges to the tire, you never know when that bulge or that damaged area of the tire could go.

[218] He also agreed that a blowout to the left front tire would cause the vehicle to suddenly pull to the left. This is consistent what Mr. Sweeney recalls seeing the SUV doing as it was about to pass him.

[219] There was also evidence that Mr. Coates’s tires had low tread depth, although there was conflicting evidence about whether this is correlated with blowouts. PC Owayda agreed with the suggestion that low tread depth is a potential risk factor for a blowout, but PC Pecchia disputed this suggestion, while Sgt. Cadieux indicated that he did not know one way or the other.

[220] As I understood PC Owayda and PC Pecchia’s evidence, I think they may both be correct, because I think they may have been talking about somewhat different things.

[221] On the one hand, I accept PC Pecchia’s evidence that low tread depth will not in itself cause a blowout if there is still some tread remaining on the tire. That is, if a tire’s sidewall is in good condition even though its tread is worn down, this does not make the sidewall more likely to suddenly rupture.

[222] On the other hand, PC Owayda’s opinion that there is some correlation between low tread depth and sidewall blowout also seems plausible. All other things being equal, it seems reasonable to expect older tires with worn-down treads to be more likely than newer tires to also have damaged sidewalls that might fail without warning.

[223] All four tires on Mr. Coates’s SUV had relatively low tread depth, indicating that they were nearing the time when they would need to be replaced. I think it is reasonable to conclude that the age and overall condition of Mr. Coates’s tires may have made them potentially more susceptible to blowing out than would have been the case if they had been newer.

[224] This evidence supports the blowout scenario to at least some small extent. If the situation had been different and Mr. Coates’s tires had been brand new, this would have weighed strongly against the possibility of his front left tire spontaneously blowing out. The evidence that his tires were older and worn makes this possibility at least somewhat more likely.

[225] The Crown argues that Sgt. Cadieux’s evidence about the tire marks on the roadway weighs against the possibility that the blowout preceded and caused the accident. Sgt. Cadieux only observed the distinctive “scalloped” tire marks caused by driving on a completely deflated tire east of the point of impact. (As I mentioned earlier, I will follow the convention of referring to the locations on the roadway where Mr. Coates’s SUV was before and after the point of impact as “west” and “east” based on the overall direction of Highway 7, even though the accident occurred at a point on the S-curve where his vehicle would have been travelling from south to north.)

[226] I accept that Mr. Coates’s SUV did not leave any scalloped tire marks on the roadway before the collision, west of the point of impact. Sgt. Cadieux did at one point say in cross-examination that there was a mark on the road to west of the point of impact that might possibly be a tire mark from the Nissan, although he thought it was more likely that it was a mark left by liquid. However, he did not describe this mark as scalloped, and it does not look scalloped in the photographs.

[227] In re-examination, Sgt. Cadieux identified a different mark some distance to the east of the point of impact as the first mark where he could “actually say 100 percent ‘that’s scalloping”. He confirmed that there were no scalloped tire marks on the roadway west of the point of impact.

[228] I accept Sgt. Cadieux’s evidence about these matters. However, the critical point that emerges from his testimony is that the SUV did not start leaving scalloped tire marks on the roadway until it had travelled some distance past the point of impact.

[229] Sgt. Cadieux marked the location where he first saw scalloping on several photographs of the scene. Although he did not estimate the distance between the point of impact and this first scalloped tire mark, the photos and the orthomosaic show that the two points are approximately 3½ car lengths apart, or roughly 15 metres. The location of the first scalloped tire mark can also be seen to be around halfway between the point of impact and the place where the SUV crossed back into the eastbound lane, which Sgt. Cadieux measured as 38.32 metres east of the area of impact, following the curve of the road.

[230] If the tire was damaged and deflated during the collision, it apparently had to be driven on for some distance – roughly 15 or 20 metres – before it deformed enough to begin leaving the distinctive scalloping pattern on the roadway.

[231] It follows that the absence of scalloped tire marks west of the point of impact does not eliminate the possibility that the tire blew out just before the collision, causing the SUV to swerve into the path of the motorcycle as described by Mr. Sweeney, but that the SUV had to then drive a further distance on the flat tire before the tire deformed sufficiently to start leaving scalloped marks on the road.

[232] I accept that it is considerably more likely that the tire blew out because of the impact with the motorcycle rather than blowing out spontaneously and causing the accident. Sgt. Cadieux testified that based on his ten years’ experience investigating motor vehicle accidents he considered tire blowouts caused by collisions to be much more common than spontaneous blowouts that cause accidents. He testified that he could think of only a handful of accident cases he had worked on, three involving transport trucks and one involving a car, where he had seen scalloped tire marks on the road before the point of impact.

[233] However, Sgt. Cadieux also acknowledged that tires sometimes do blow out without warning, and that accidents caused by tire blowouts do happen, even if they are not common.

[234] The Crown’s burden in a circumstantial case is to disprove all reasonable possibilities that are inconsistent with the accused’s guilt. A possibility can still be reasonable even if it is substantially less likely than the competing alternatives. The standard of proof beyond a reasonable doubt does not require proof to an absolute certainty, but nevertheless “falls much closer to absolute certainty than to proof on a balance of probabilities”: R. v. Starr, at para. 242.

[235] I also appreciate that the chances of Mr. Coates’s tire coincidentally blowing out just as he was about to pass Mr. Sweeney can be fairly characterized as unlikely. However, it would be a basic reasoning error to dismiss the blowout scenario for this reason alone. The accident itself, no matter what caused it, was itself improbable, since it required events to converge in a very specific way. If Mr. Coates’s SUV had swerved into the oncoming lane a few seconds earlier or a few seconds later it probably would not have hit Mr. Sweeney’s motorcycle, just as the accident probably would not have happened if Mr. Sweeney had left his house a few minutes earlier or later that evening. Multiple contingencies had to line up exactly as they did for the accident to happen at all. But the accident did happen, even though it could not have been predicted in advance. The relative probabilities of its potential causes must be considered in this context.

[236] A second possibility that I must also consider is that the accident was caused by the broken control arm on the driver’s side of the SUV’s steering assembly. PC Pecchia agreed that a broken control arm would affect the steerability of the SUV, although he was not asked if it would cause the vehicle to suddenly pull to the left, as a blowout would.

[237] For various reasons, I think the likelihood of the control arm suddenly breaking just as the SUV was about to pass Mr. Sweeney’s motorcycle is far lower than the possibility that the left front tire suddenly blew out. However, I am not persuaded that it can be completely ruled out.

[238] PC Pecchia’s evidence was that when he examined the broken control arm he saw “no rust or any kind of oxidation on the parts to indicate to me that they were previously cracked or … broken”. The absence of rust is of no significance, since the control arm was made of aluminum, which does not rust. Aluminum does oxidize, and I accept that PC Pecchia saw no signs of oxidation, which if present might have indicated that the control arm had been cracked prior to the accident.

[239] However, PC Pecchia also apparently observed no oxidation on the broken edges of the metal when he examined the Nissan in December 2019, even though the control arm had been broken at least since the date of the accident, some three months earlier. This suggests that the metal could also have been cracked for at least several months before the accident without necessarily showing any visible signs of oxidation.

[240] PC Pecchia also acknowledged that further testing could have been done that might have revealed more about the age and cause of the break in the metal part, but that this testing was not done. The absence of evidence resulting from the police not pursuing available investigative avenues can contribute to a reasonable doubt: see R. v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320, at paras. 36-40; R. v. Bero, 2000 CanLII 16956, at para. 57 (Ont. C.A.).

[241] Intuitively, it seems implausible that an important part of the steering mechanism like the lower control arm would spontaneously break in half without warning. However, I have no relevant knowledge or experience in this area that I can properly draw on to dismiss this possibility as being too remote to raise a reasonable doubt about how the accident happened. This is a conclusion I could only reach if it were supported by evidence, and in my view the evidence that has been presented in this case falls short.

[242] In summary, it is at least reasonably possible on the evidence in this case that Mr. Coates’s SUV suffered a tire blowout or a mechanical failure that caused it to suddenly swerve to the left and into the path of the motorcycle, as described by Mr. Sweeney. These possibilities may not be very likely, but I am not satisfied that they can be dismissed beyond a reasonable doubt.

[243] This does not automatically mean that the Crown has failed to establish the requisite mens rea for dangerous operation of a conveyance. The Crown could still meet its burden by showing that Mr. Coates was driving in a manner that markedly departed from the standard of care of a reasonable motorist, and that this significantly contributed to his inability to control his SUV and keep it in its proper lane after the blowout or mechanical failure.

[244] In arguing that Mr. Coates’s overall manner of driving markedly departed from the standard of care, the Crown places great emphasis on the evidence that he was speeding and using his phone before the accident, even though by the time of the accident itself he had slowed down considerably and was no longer making any phone calls.

[245] I agree that the manner Mr. Coates’s driving leading up to the accident is relevant to the issue of mens rea, in that a pattern of bad driving before the accident could potentially rebut the suggestion that the accident was due to mere momentary inattentiveness on Mr. Coates’s part: see, e.g., R. v. Akuamoah-Boateng, 2013 ONSC 7169. However, evidence that Mr. Coates was driving in a dangerous manner before the accident will not help the Crown counter the possibility that the accident was caused by a sudden external event, such as a tire blowout or the breaking of the lower control arm, unless this evidence supports the dual inferences that Mr. Coates’s driving at the time of the accident both markedly departed from the standard of care of a reasonable motorist, and that it affected his ability to react to the sudden event.

[246] I accept that a person who is talking on the phone while driving, even while using a handsfree Bluetooth connection, might perhaps have more difficulty reacting to a sudden emergency such as a tire blowout. However, that does not assist the Crown in this case. While the evidence shows that Mr. Coates had made repeated phone calls to his friend Mr. Haleky while he was approaching the S-curve, he was no longer using his phone when the accident occurred.

[247] Likewise, the evidence that Mr. Coates was driving at 120 km/h before he reached the S-curve does not in my view help the Crown counter the reasonable possibility that the accident was caused by a tire blowout or sudden mechanical failure. By the time of the accident, his speed had dropped to around 100 km/h. While this was still faster than the posted speed limit, I am not persuaded that driving 100 km/h in a 70 km/h zone can be said to “markedly depart” from the standard of care observed by most Ontario drivers.

[248] I am also not satisfied on the evidence before me that Mr. Coates would necessarily have been able to avoid swerving into the oncoming lane if his tire blew out or the control arm broke and he had been travelling at only 70 km/h, rather than at 100 km/h. The Crown did not adduce any evidence on this issue, and I cannot draw conclusions based on speculation.

[249] I am also not persuaded that Mr. Coates’s driving leading up to the accident supports the inference that he must have been doing something else at the time of the accident that both markedly departed from the standard of care, and that would have prevented him from reacting properly to a tire blowout or mechanical failure that affected his SUV’s steering. I cannot speculate that because Mr. Coates had earlier been talking on the phone while speeding, he must have been doing something different at the time of the accident that interfered with his concentration or otherwise affected his ability to respond to a sudden emergency.

[250] In this regard, I should add that I am also not persuaded that Mr. Coates’s earlier phone use was as hazardous as the Crown would have it. The Highway Traffic Act permits cell phones to be used “in hands-free mode”: s. 78.1(3). The data from the Nissan’s infotainment system showed that contacts from Mr. Coates’s phone were transferred to his vehicle’s computer, indicating that the phone had been connected to the vehicle by Bluetooth at some point. In these circumstances, I think the inference can be drawn that Mr. Coates probably used his handsfree phone setup to call Mr. Haleky. I am not persuaded that making calls using a handsfree phone connection, which the HTA expressly permits, can be said to “markedly depart” from the standard of care expected of a reasonable motorist.

[251] I think that the Crown’s efforts to invite me to draw inferences from Mr. Coates’s driving after the accident must also be approached with caution. Even accepting that it was objectively dangerous for Mr. Coates to keep driving for nearly four more kilometres in a badly damaged vehicle with a flat tire, his doing so does not shed any light on how he was driving before the accident. I cannot properly reason that because Mr. Coates drove dangerously after the accident, he is the sort of person who would also have been driving dangerously before the accident. Propensity-based reasoning of this nature cannot be used to bridge gaps in the Crown’s case.

[252] I am also not persuaded that I can dismiss the possibility of a blowout or mechanical failure through chains of reasoning that require me to make assumptions about Mr. Coates’s motives for not stopping after the collision.

[253] In particular, even if I were to assume that Mr. Coates was trying to flee the accident scene because he thought he faced legal jeopardy, this would not eliminate the possibility that the accident was in fact not his fault. If Mr. Coates’s SUV swerved into the motorcycle’s path because of a tire blowout or mechanical failure, it is not implausible that he might not have understood in the moment what had just happened. It is not hard to imagine Mr. Coates panicking and trying to flee the accident scene because he thought he would be blamed for letting his SUV cross the centre line and hit Mr. Sweeney’s motorcycle, whether he was actually to blame or not.

[254] Perhaps even more significantly, I also cannot dismiss the possibility that Mr. Coates was concerned about criminal liability because he had been drinking. As I have already explained, I am not satisfied that the admissible evidence about the timing and quantity of Mr. Coates’s alcohol consumption that afternoon affirmatively proves that he was impaired at 7:15 p.m. At the same time, the possibility that he may have drunk more alcohol than his teammates now remember cannot be dismissed. This could have given him a reason to try to flee the accident scene even if he knew that the collision had been caused by a tire blowout or mechanical failure that he could not have foreseen or prevented.

[255] In summary, I am not satisfied that the possibility of the accident being caused by a tire blowout or mechanical failure of the control arm has been ruled out on the criminal standard of proof. Reasonable possibilities do not necessarily have to be based on evidence, but in this case there is a body of affirmative evidence that supports both scenarios to at least some extent. Both possibilities are potentially capable of explaining why the SUV swerved suddenly into Mr. Sweeney’s lane, as he described. Considering them together, I am not satisfied that they can be dismissed as having been disproved beyond a reasonable doubt.

[256] Moreover, if Mr. Coates’s vehicle did cross the centre line because of a sudden tire blowout or mechanical failure, I cannot be satisfied beyond a reasonable doubt that his driving was otherwise criminally culpable. That is, I am not satisfied that at the time of the accident he was driving in a manner that markedly departed from the standard of care expected of a reasonable driver in the circumstances, or that his manner of driving was what caused him to lose control of his vehicle and permit it to cross into the path of Mr. Sweeney’s motorcycle. The evidence that he was travelling at 100 km/h in a 70 km/h zone is not in my view sufficient on its own to establish a “marked departure” from the standard of care expected of a reasonable motorist.

[257] It follows that I must find Mr. Coates not guilty on Count 3.

VI. The Separate Trial on the Fail to Stop Charge

[258] As I have already discussed, I granted Mr. Coates severance of the fail to stop charge, which was Count 4 of the original indictment. This count is now being tried separately, but the parties agreed that I would remain the trial judge and that the evidence adduced at the first trial would be deemed to have been read into the record at the second trial.

[259] The defence also adduced additional evidence, including Mr. Coates’s own testimony, that is only admissible in the second trial.

A. The evidence admissible only on the fail to stop charge

1. Mr. Coates’s testimony

[260] Mr. Coates is 45 years old and has been a police officer since 2006. He lives in Oshawa with his wife, their teenage son, and Mr. Coates’s parents. On the day of the accident Mr. Coates’s wife and son were in Florida on a family vacation, and he was planning to fly down to join them after he finished work the next day.

[261] Mr. Coates confirmed the evidence of his softball teammates about how he spent the afternoon of September 29, 2019 at Milliken Mills Park attending his softball league’s playoff tournament. He arrived at the park at approximately 12:15 p.m., and his team started playing their first-round playoff game at around 12:30 or 12:45 p.m. They lost the game and were eliminated from the tournament, but Mr. Coates stayed at the park with a group of his teammates for the rest of the afternoon.

[262] Mr. Coates confirmed his teammates’ evidence that he brought a bottle of rum to the park that day, testifying that it was a 750 ml bottle that was roughly half full. He also confirmed Mr. Haleky’s evidence about how they both poured approximately one-ounce shots of the rum into Gatorade bottles to drink while they were playing softball. They also put a larger quantity of the rum – approximately 5 or 6 ounces – into a third Gatorade bottle to give to one of their teammates as a prank, but then thought better of it. Mr. Coates confirmed Mr. Haleky’s evidence that when they abandoned the prank Mr. Coates put the Gatorade bottle with the rum back in his SUV. He explained in his trial testimony that he put it in his centre console.

[263] Mr. Coates testified that during the softball game he drank the ounce of rum he had mixed with Gatorade, and that this was the first alcohol he had consumed that day. After the game he then drank one bottle of beer. Mr. Coates recalled giving his bottle of rum to his teammate Rick, but denies that they drank it together, and denies drinking any rum after the game while still at the park. Like Mr. Trinh and Mr. Haleky, Mr. Coates disputes Mr. Su’s account of the team toasting the season in the parking lot with rum.

[264] Mr. Coates testified that after finishing the post-game beer he did not drink any more alcohol that afternoon, and was not feeling any effects from his earlier drinking when he left the park at around 7:00 p.m.

[265] He began driving home to Oshawa, following a route that took him north up McCowan Road and east on Highway 7. While he drove, he received a call from Mr. Haleky, which he took using his car’s handsfree Bluetooth connection. The call dropped and he tried repeatedly to call Mr. Haleky back, by pressing a button on his steering wheel and using voice commands, but was unable to get through to him.

[266] Mr. Coates explained that he was very familiar with Highway 7, since earlier in his police career he had worked for 10 years at the police station in Markham and had used Highway 7 to commute to and from work. He testified that by the time he entered the S-curve to the west of York-Durham Line he had stopped trying to call Mr. Haleky. He was not sure how fast he was driving, but he was keeping pace with the vehicle ahead of him.

[267] As Mr. Coates drove north on the straightaway between the two parts of the S-curve he saw the vehicle ahead of him swerve to the right and onto the shoulder. He then saw a bright blinding light from a motorcycle with its high beams on, and a split second later his SUV collided with the motorcycle.

[268] Mr. Coates explained:

[A]fter the accident … when I could see again I could see I wasn’t in my lane, and instinctively I went back into my lane because I was still going.

This was when he first realized that he had crossed the centre line into the oncoming lane. After pulling back into his own lane he checked himself for injuries but did not find any. He then pulled over and stopped on the eastbound shoulder of the road. According to Mr. Coates the decision to stop was his choice, not one that was forced on him because his SUV had become undriveable.

[269] Mr. Coates does not dispute the evidence that the place where he stopped was in fact several kilometres east of York-Durham line, and approximately 3.88 kilometres from the place where his SUV had collided with the motorcycle. However, he maintains that he had believed at the time that he had only gone 200 or 250 metres past the accident scene, and that he was still west of York-Durham Line. He testified that he has a clear memory of this, explaining:

So I remember when I was out and my vehicle was on the shoulder, and I was – the vehicle’s facing eastbound. I’m on the driver’s side door area. I’ve got my left foot planted on the ground, my right foot bent up touching the car as I’m leaning back on it, and I can remember – I can see it clear. When I look to the right, I can see the York Durham Line and Highway 7 intersection and the lights, and when I look to the left I could see the S-bend that is over that way. … I definitely accept where I actually was and what actually happened, but if I think back on that day – and I’m remembering what I saw from … just my surroundings from looking around, I remember being west of York-Durham Line on Highway 7.

[270] Mr. Coates testified that after getting out of his vehicle he checked himself again for injuries. He described himself as “in a fog and confused at that point”, and could not remember the order in which he did things he now remembers doing. He recalled looking at the damage to his car and also remembers “start[ing] back to the S-bend” to look for the motorcyclist he had hit, but testified that when he did not see or hear anything he returned to his vehicle. Mr. Coates explained in cross-examination that:

I didn’t see anything and I was in my own state, and I just did what I did. … I did whatever came in my mind that I thought that I should be doing. That’s the only way I can describe it.

He could not remember how far he walked, or how long he spent looking for Mr. Sweeney.

[271] Mr. Coates also realized that that he was very thirsty, and at some point he grabbed the bottle of Gatorade that was in the centre console and drank down the contents without tasting them. This was the bottle containing the rum and Gatorade mixture that he and Mr. Haleky had prepared earlier that day as a prank on their teammate that they then abandoned.

[272] Mr. Coates acknowledges that he did not call 911 to summon help for Mr. Sweeney, explaining that in his state of confusion doing this did not occur to him. Instead, he thought he should call home and tell his parents he had been in an accident and would not be home. He spoke to his mother, but denied telling her to “hurry up” or “come quick”, and denied that he had been trying to get her to come pick him up from the roadside. He testified that his mother said she would come to where he was, and that he “told her exactly where I was, I was at York-Durham Line and Highway 7”. Mr. Coates added that his parents do not drive a Mercedes and that both have sedans. Sgt. Cuff also recalled that the people she spoke to who identified themselves as Mr. Coates’s parents had been in a sedan of some sort.

[273] Mr. Coates also called his wife in Florida and told her he had been in an accident and that he would keep her informed about what was going on.

[274] Mr. Middleton arrived approximately five or ten minutes after Mr. Coates first pulled over at the roadside. Mr. Coates could hear Mr. Middleton talking on the phone with the police dispatcher. After he got off the phone Mr. Middleton became confrontational. Mr. Coates testified:

[W]hen he got off the phone he was extremely aggressive and berating and calling me names. He was mad. He was yelling. He was saying stuff like, “You’re fucked. The police are coming”, but he was – he was really angry and mad.

[275] Mr. Coates thought that if he responded to Mr. Middleton in any way “he would’ve started a physical altercation for sure, so I did not engage at all with [him]”. He remained silent and did not speak to Mr. Middleton at all.

[276] PC Zec then arrived and arrested Mr. Coates and took him to 5 District station in Markham. Mr. Coates testified that he had no clear memory of events at the station, explaining that watching the videos from the station:

… was unlike any other feeling that I’ve ever felt in my entire life. I remember things differently or wrong. I know what happened. Nothing in those videos triggered some kind of a – “Oh, I remember this now” or “I can link this to that”. It was like watching a movie that I starred in and that … I lived, but … I can’t put it all together because that’s not how I can remember what happened.

[277] Mr. Coates was held overnight for a bail hearing and released the next morning. He was told that he was suspended from work with pay. By this time he was feeling very unwell, explaining:

I was feeling horrible, depressed, confused. I had headaches. I was nauseous. I was dizzy. I was sensitive to light, sensitive to noise. … I was not myself. I [was] just still in shock from what happened.

[278] A few days later, on October 2, 2019, Mr. Coates went to a walk-in medical clinic where he was told he had a concussion and was directed to go to the hospital emergency room.

[279] Mr. Coates had booked the rest of the week off for his planned trip to Florida, but the following week he was required to start signing in at work as a term of his suspension with pay. The first day his father drove him he found that the “car ride was like torture”, so he went to a medical clinic near his house to get a note to excuse him from attending work. He made several follow-up visits to the clinic and was referred to a concussion clinic in Oshawa, which he also attended regularly.

[280] Mr. Coates testified that his concussion symptoms persisted for more than a year, although some improved more quickly than others.

2. Evidence from other witnesses regarding Mr. Coates’s concussion symptoms

[281] The defence called three witnesses who diagnosed or treated Mr. Coates’s concussion symptoms.

[282] Dr. Oren Shemtov was the emergency room physician at North York General Hospital who saw Mr. Coates on November 2, 2019. He no longer recalled the visit, but vouched for the accuracy of the documentation he prepared at the time.

[283] Dr. Shemtov diagnosed Mr. Coates as having a concussion, based on his subjective reporting of his symptoms and his description of the accident. He sent Mr. Coates to have a CT scan to rule out the possibility of bleeding in the brain, which would be more serious than a concussion. The scan came back negative, but this was normal for a concussion case. Dr. Shemtov was “quite confident” in the accuracy of his diagnosis, but added that concussion diagnoses typically do not have any objective supporting data and must be based on the patient’s self-reported symptoms.

[284] David Rambukkana is a physiotherapist at a sports injury clinic where Mr. Coates was referred for treatment. He met with Mr. Coates and provided treatment to him eight times between October 21 and December 6, 2019. Mr. Coates reported that he was experiencing various symptoms typical of concussion patients, including cognitive issues, nausea and sensitivity to light. He also had observable deficiencies when performing tests that assessed his balance and his ability to track moving objects with his eyes. By December 6, 2019, Mr. Coates’s symptoms had improved to the point where he did not need any further treatment from Mr. Rambukkana, although he continued to attend the clinic to receive massage therapy from other staff members.

[285] Chelsea Bardoul is a registered practical nurse who at the relevant time worked for the Oshawa medical clinic where Mr. Coates sought treatment. She met with him four times between October 7 and 30, 2019. He initially came in to obtain a doctor’s note to excuse him from attending work, and after his second visit on October 16, 2019 he was referred to the sports injury clinic for concussion treatment. Ms. Bardoul testified that Mr. Coates complained of headaches, neck and back pain, short-term memory issues, and sensitivity to light, and that she could see him “visibly wincing when I shone the light in his eyes”.

3. Opinion evidence of Dr. Ken Berger

[286] Dr. Kenneth Berger is a medical doctor as well as a practicing lawyer. He is board certified in the areas of emergency medicine and sports medicine, and practiced in both areas earlier in his medical career. Dr. Berger is not a neurologist, but during his 23 years at Bridgepoint Health was responsible for the neurological care unit. He has experience treating concussions, and I permitted him to give opinion evidence regarding the diagnosis and treatment of concussions.

[287] Dr. Berger described a concussion as a traumatic brain injury caused by the acceleration of the brain within the skull. The forces that cause a concussion can be indirect, and the patient’s head does not necessarily have to strike or be struck by anything.

[288] People who experience concussions have observable cognitive changes and “an altered level of consciousness”. Dr. Berger testified:

Patients can feel like they’re in a fog; they’re slowed down; they’re dazed; they sometimes can stare into a distance and … the person’s not really … there. If you speak to them and they respond they sound scrambled. … [T]hey’re not physically present … in the moment, disorientated.

[289] The physical symptoms of a concussion can include headaches, nausea, dizziness and problems with balance, and sensitivity to light and/or sound.

[290] Dr. Berger explained further that people who have sustained a concussion may not be able to assess their own condition accurately. He recalled a situation where he had been on the medical staff for the Canadian soccer team and the goalkeeper had suffered a mid-game concussion but had not recognized that he was confused and had wanted to continue playing.

[291] According to Dr. Berger, some people suffering from concussions are not capable of volitional action. He explained that in his opinion:

[T]heir actions are not of a directing mind, so … they’re capable of physical action, but … there’s a separation between the mind … and the body and there’s no kind of intentionality to it. … [T]hey’re not really thinking about the consequences of what they’re doing or are they able to when … their brain function is scrambled and their thinking and reasoning, judgment and insight … is scrambled. They’re just not able to … they don’t have a – really a … directing mind … over their actions.

[292] A concussed person in an altered state of consciousness may still be able to do complex physical actions such as driving, but “there’s no directing mind with that physical ability”.

[293] Based on the information provided to him, Dr. Berger’s opinion was that Mr. Coates “clearly had a concussion” after the September 29, 2019 collision. He explained further that in his view:

[T]he impaired level of consciousness or impaired state of consciousness likely impacted his voluntariness and his intentionality with respect to leaving the scene of the accident or not.

[294] In cross-examination, Dr. Berger explained that he was satisfied “to a high degree of close to certainty [that Mr. Coates] was concussed”, but that his confidence that the concussion affected the volition of Mr. Coates’s actions was lower, and was in his opinion only “likely”. He acknowledged that he had never spoken to or examined Mr. Coates, but did not believe that doing so would have assisted him since he had been asked in 2022 to opine on events in September 2019.

[295] Dr. Berger agreed that “intoxication could cause confusion in the same way that a concussion could or would”.

B. Legal principles

1. The s. 320.16(1) fail to stop offence

[296] Section 320.16(1) of the Criminal Code provides:

320.16 (1) Everyone commits an offence who operates a conveyance and who at the time of operating the conveyance knows that, or is reckless as to whether, the conveyance has been involved in an accident with a person or another conveyance and who fails, without reasonable excuse, to stop the conveyance, give their name and address and, if any person has been injured or appears to require assistance, offer assistance.

[297] The charge against Mr. Coates essentially tracks this statutory language.

[298] Section 320.16(1) replaced the previous offence in s. 252 of the Code, which was broadly similar but included the additional mental element that the accused must have had the subjective “intent to escape civil or criminal liability”.

[299] In R. v. Wells, 2020 ONCJ 294, at para 45, Knazan J. explained:

A plain reading of the section creating the charge … yields its meaning. The actus reus of the offence is to fail to stop and provide name and address and render assistance where necessary. The mental element is the intention to drive away. A further specified intent, to avoid criminal or civil liability that formed part of the predecessor section has been eliminated. The only mental element in the section is the intent to fail to meet any of the three requirements, to stop, provide name and address, and render assistance when necessary.

[300] I would add that in my view s. 320.16 does not require motorists involved in accidents to always stop immediately, since in some situations it may be impossible or unsafe for motorists to come to a sudden stop. Reading the section as a whole, I think the requirement to “stop the conveyance” must be understood as functionally related to the duties that arise once a motorist has stopped. That is, I would interpret the section as requiring motorists to stop as soon as is reasonably practicable in the circumstances, and if necessary then return to the scene of the accident to provide the required information and assistance.

[301] In other words, if Mr. Coates really had pulled over 200 metres past the accident scene and had immediately gone back to give assistance to Mr. Sweeney, as he claims to have believed he was doing and meant to do, I do not think he would have committed an offence under s. 320.16 merely because he stopped a few hundred metres away.

2. The available defences

[302] In the case at bar, Mr. Coates acknowledges that he knew immediately that his SUV had collided with a motorcycle. He also acknowledges that he did not stop until he had driven a further 3.88 kilometres to the east. It is also undisputed that once Mr. Coates did stop, he did not give his name and address to Mr. Sweeney or offer him any assistance.

[303] Given the extent and gravity of Mr. Sweeney’s injuries, I think that if Mr. Coates had stopped and found Mr. Sweeney at the side of the road, it would not have been realistic to have expected him to have provided his name and address, since Mr. Sweeney was plainly in no condition to receive this information. The real gravamen of the charge against Mr. Coates is his failure to stop and assist Mr. Sweeney, which in the circumstances here would have included summoning help. If Mr. Coates had done these things, I think he would have had a reasonable excuse for not providing his name and address to Mr. Sweeney while they waited for help to arrive.

[304] Mr. Coates’s main defence is that he subjectively believed that after the collision he pulled over and stopped his vehicle as soon as was reasonably practicable, approximately 200 or 250 metres away from the point of impact and still west of York-Durham Line. He maintains that he did not realize that he had really continued driving for approximately 3½ minutes and was now nearly 4 kilometres away from the accident scene. Mr. Coates also maintains that once he stopped, he tried to comply with his obligation to assist the motorcyclist by walking back to look for Mr. Sweeney. He did not find him, because Mr. Sweeney was really lying injured at the side of the road nearly 4 kilometres to the west, but Mr. Coates maintains that he did not realize that he was looking in the wrong place.

[305] As I have already discussed, I am prepared to accept for the purposes of my analysis that Mr. Coates would not have committed an offence under s. 320.16 if he had really done what he says he believed at the time. That is, I am prepared to accept that stopping 200 or 250 metres beyond the accident site and then walking back to it to render assistance would not have constituted a “failure to stop” for the purposes of the section.

[306] I am also prepared to accept for the purposes of my analysis that s. 320.16 requires the Crown to prove that the accused’s failure to stop was intentional, and that Mr. Coates can accordingly rely on his claimed mistake of fact as a defence. As Dickson J. explained in Pappajohn v. The Queen, 1980 CanLII 13 (SCC), [1980] 2 S.C.R. 120 at p. 148:

Mistake is a defence, then, where it prevents an accused from having the mens rea which the law requires for the very crime with which he is charged. Mistake of fact is more accurately seen as a negation of guilty intention than as the affirmation of a positive defence. It avails an accused who acts innocently, pursuant to a flawed perception of the facts, and nonetheless commits the actus reus of an offence. Mistake is a defence though, in the sense that it is raised as an issue by an accused. The Crown is rarely possessed of knowledge of the subjective factors which may have caused an accused to entertain a belief in a fallacious set of facts.

[307] However, the defence’s medical expert witness, Dr. Berger, went further and gave the opinion that Mr. Coates actions after the accident were non-volitional. His evidence raises the defence of automatism. As Doherty J.A. explained in R. v. Luedecke, 2008 ONCA 716, at para. 56:

The automatism “defence” is not a defence in the true sense but is a denial of the commission of the actus reus of the crime. Absent the commission of the prohibited act, there can be no crime and hence no criminal liability. A person who is unable to decide whether to perform an act and unable to control the performance of the act cannot be said, in any meaningful sense, to have committed the act.

[308] The defence of automatism is subject to special limitations. While it is the Crown’s burden to prove the actus reus and mens rea of a charged offence beyond a reasonable doubt, the law presumes a defendant’s actions to have been volitional. The Supreme Court of Canada has held that a defendant who seeks to rebut this presumption by raising the defence of automatism must prove the defence on a balance of probabilities: see R. v. Stone, 1999 CanLII 688 (SCC), [1999] 2 S.C.R. 290, at para. 179.

[309] In this case, Mr. Lindsay took the position Mr. Coates was not seeking to rely on the defence of automatism. That is, Mr. Coates does not claim that his actions after the accident were involuntary – an issue on which he would bear the burden of proof – but instead maintains that the Crown has not met its burden of proving beyond a reasonable doubt that he had the requisite mens rea.

[310] However, my obligation as the trier of fact is to consider all defences that arise on the evidence, whether or not Mr. Coates or his counsel seek to rely on them: see R. v. Esau, [1997] 2. S.C.R. 777, at para. 27. I must accordingly consider the defence of automatism as it has been raised by Dr. Berger’s evidence, even though Mr. Coates does not himself seek to rely on this defence.

3. The burden of proof

[311] The basic rule in criminal cases is that the Crown must prove the defendant’s guilt beyond a reasonable doubt. This rule has implications for how I must assess any evidence that favours the defence on the issue of mens rea, since a reasonable doubt can arise even from evidence that I do not entirely accept. This essential point is often made to juries and in judicial self-instructions using the three-part formulation suggested by Cory J. in R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742 at pp. 757-58. To paraphrase:

i) If I believe Mr. Coates’s testimony that he did not realize that he had failed to stop near the accident scene, or any other evidence favouring the defence on the issue of his mens rea, I must find him not guilty;

ii) Even if I do not affirmatively believe this evidence, I must find Mr. Coates not guilty if it raises a reasonable doubt on the issue of mens rea;

iii) Even if I entirely reject this evidence, I must still consider whether I am satisfied that the requisite mens rea has been established beyond a reasonable doubt, based on the evidence that I do accept.

[312] However, the W.(D.) formulation does not apply to the issue of the actus reus and the defence of automatism, since under Stone the onus of establishing this defence is reversed and it is Mr. Coates’s burden to rebut the presumption that his actions after the accident were volitional, on a balance of probabilities.

[313] I should also note that the W.(D.) formulation only applies to evidence that bears on the essential elements of the offence. Mr. Coates’s testimony about the events leading up to the accident, and about the accident itself, does not bear directly on the critical issue of whether he intentionally failed to stop and assist Mr. Sweeney. Nevertheless, the view I take of these other aspects of Mr. Coates’s testimony may affect my assessment of his overall credibility and reliability, which may in turn indirectly affect my assessment of his evidence concerning his subjective beliefs and state of mind after the accident.

C. Analysis and findings of fact

1. Mr. Coates’s evidence regarding events leading up to the accident

[314] Mr. Coates chose to testify only in relation to the fail to stop charge, and successfully applied to have this charge severed from the other counts. I have accordingly considered and reached verdicts on the other counts without considering his trial testimony or the other evidence adduced by the defence.

[315] However, Mr. Coates then testified about events leading up to the accident, and about the accident itself, as well as about his actions, his subjective beliefs, and his mental condition after the collision. Only this latter evidence bears directly on the fail to stop charge. Nevertheless, as I have just explained, my assessment of his evidence on the contested factual issues relating to the other charges can properly affect my view of his overall credibility and reliability, which may in turn affect my assessment of his evidence bearing directly on the fail to stop charge.

[316] I will accordingly begin by briefly commenting on Mr. Coates’s evidence about events leading up to the accident, and about the accident itself. To reiterate a point I made earlier, the W.(D.) formulation does not apply to this evidence, since if I were to believe Mr. Coates’s evidence about these other matters this would not compel me to find him not guilty on the fail to stop count.

a) Mr. Coates’s alcohol consumption

[317] I do not affirmatively accept Mr. Coates’s testimony about how much alcohol he drank at the park, but neither am I able to reject it.

[318] He testified that he had only two drinks that afternoon: the rum he drank during the softball game, and the one beer he drank after the game. This accords with Mr. Haleky’s evidence, but is undermined by Mr. Trinh and Mr. Su, who both remember Mr. Coates also drinking rum in the parking lot later in the afternoon, although each recalls the surrounding circumstances differently.

[319] As I have already explained, I was unable to resolve the conflicts between the three Crown witnesses on these points. Adding Mr. Coates’s evidence to the mix still leaves me in a state of uncertainty. He acknowledged bringing the bottle of rum to the park, and it is entirely possible that he had more rum to drink than he now admits. However, I cannot be sure of this on the evidence as a whole.

2. Mr. Coates’s account of the accident

[320] I also do not affirmatively accept any part of Mr. Coates’s evidence about how the collision happened. There are some parts of his account that I find might be true. However, there are other parts that I reject.

[321] On the disputed issue of whether the motorcycle had its high beam headlights on, I do not go so far as to prefer Mr. Coates’s evidence that the high beams were on over Mr. Sweeney’s denial. However, I am satisfied on the evidence as a whole that it is at least reasonably possible that the motorcycle’s high beams were on, as Mr. Coates says. The police found the high beam switch in the “on” position when they examined the motorcycle after the accident, although it might possibly have been toggled during the collision or afterwards, when the motorcycle was being moved to the storage garage. Moreover, the accident took place at dusk at a time when the sky was still bright, which I think would have made it difficult for Mr. Sweeney to see how his headlights were projecting forwards. He might well have been riding with his high beams switched on, but not have realized this.

[322] However, I do not accept Mr. Coates’s further evidence that Mr. Sweeney crossed over the centre line and was driving straight at Mr. Coates, so that his headlights were shining directly into Mr. Coates’s eyes. I reach this conclusion for two main reasons.

[323] First, Mr. Coates and Mr. Sweeney both agree that there was another eastbound vehicle travelling a short distance ahead of Mr. Coates’s SUV. If Mr. Sweeney had initially been trying to “cut the corner” by drifting into the oncoming eastbound lane, I think he would almost certainly have pulled back into his own lane once he saw the lead vehicle approaching him. It strikes me as implausible that he would have stayed in the wrong lane and counted on the other vehicle swerving to avoid a collision. I also think it is unlikely that he would have pulled back into his own lane and then immediately swerved back into the eastbound lane so that he was driving straight at Mr. Coates.

[324] Second, I accept Mr. Sweeney’s evidence that he would not have been inclined to cut the corner in any event, simply because he found taking curves on his motorcycle fun and liked to “go a little quicker through the turns and make them a bit more exciting”.

[325] High beam headlights from an oncoming vehicle can still be distracting even if the vehicle is in its proper lane. However, I find Mr. Coates’s claim that he crossed the centre line into Mr. Sweeney’s lane because he was blinded by the motorcycle’s headlights wholly implausible, for three different reasons.

[326] First, it was not yet dark outside. Although the sun had just set, the in-car camera footage from the other police vehicles in the area show that the dusk sky was still bright. As Sgt. Cadieux pointed out, the light from an oncoming headlamp would not seem blinding when it was viewed against the contrast of a bright-sky background. The in-car camera footage from the other vehicles in the area tends to support this conclusion.

[327] Second, the motorcycle and Mr. Coates’s SUV were approaching around a curve that bent to Mr. Coates’s right. As a result, the light from Mr. Sweeney’s motorcycle would only have been shining in Mr. Coates’s direction for a very short time before the collision, after the motorcycle and the SUV reach a point on the curve where their direction of travel became approximately parallel to one another.

[328] Third, I do not accept that Mr. Coates would have reacted to seeing a sudden bright light from an oncoming vehicle by swerving to his left, into the oncoming lane. Rather, I think it is overwhelmingly more likely that his instinctive reaction would have been to veer to his right and onto the shoulder to try to avoid a collision, as he described the vehicle ahead of him doing.

[329] I have already resolved the dangerous driving charge in the first indictment in Mr. Coates’s favour without considering his testimony, which was inadmissible on this count. My rejection of his account of the accident is only significant insofar as it affects my assessment of his reliability and credibility generally.

[330] In this regard, I am left unimpressed with Mr. Coates’s reliability as a historical narrator. However, I draw no adverse conclusions about his overall testimonial credibility from my disbelief of this aspect of evidence. I think the speed and circumstances in which the accident unfolded were such that it would be hard for either Mr. Sweeney or Mr. Coates to remember events accurately. I have already expressed my reservations about the reliability of Mr. Sweeney’s own memory of the accident, while trying to make it clear that I was not impugning his honesty. I extend the same benefit of the doubt to Mr. Coates. I think it is possible that he now honestly believes that he turned into Mr. Sweeney’s lane and collided with his motorcycle because he was blinded by the motorcycle’s high beams, even though I am satisfied that this is not what really happened.

[331] The critical questions in relation to the fail to stop count are whether Mr. Coates then left the accident scene volitionally and intentionally. As I will now explain, my decision about whether the fail to stop charge has been proved ultimately turns on my assessment of Mr. Coates’s explanation for why he did not stop. My non-acceptance of his evidence about how the accident itself occurred will not be a significant factor in my reasoning.

3. Mr. Coates’s mental condition after the accident

[332] To reiterate, it is undisputed that Mr. Coates only stopped his SUV about 3½ minutes after the collision, during which time he drove approximately 3.88 kilometres away from the accident scene. He acknowledges that he knew that his SUV had just collided with a motorcycle, and he does not dispute that by driving a further 3.88 kilometres he “fail[ed] … to stop [his] conveyance” as required by s. 320.16(1).

[333] Mr. Coates’s defence is that he did not realize that he had driven as far from the accident scene as he had done, or that he drove for as long as he did, because he was concussed during the collision. He maintains that he believed he had stopped only a few hundred metres away from the accident scene, while he was still west of York-Durham Line, and that because of his mistake of fact he did not have the requisite mens rea for the s. 320.16(1) offence because his failure to stop as required was not intentional.

[334] However, his expert witness, Dr. Berger, went further and offered the opinion that Mr. Coates was in a state of automatism after the collision and was not acting volitionally. On Dr. Berger’s evidence, Mr. Coates did not commit either the actus reus or the mens rea of the s. 320.16 offence.

a) Did Mr. Coates suffer a concussion during the collision?

[335] At the outset, I am satisfied on all the evidence that Mr. Coates probably did suffer a concussion as a result of the collision. I reach this conclusion for two main reasons.

[336] First, I accept that the forces involved in the collision were sufficiently large to be capable of causing Mr. Coates to suffer a concussion-type brain injury, even though there is no evidence that he struck his head on anything. It is clear from the evidence that the two vehicles approached one another at high speed and collided with considerable force. Both vehicles sustained significant damage from the force of the impact. Importantly, Newton’s third law of motion means that the force each vehicle exerted on the other would have been equal but opposite. Mr. Coates’s SUV would have decelerated less than the motorcycle because it was considerably more massive than the motorcycle and rider. Even so, I accept Dr. Berger’s evidence that the SUV’s deceleration could have been sufficient to cause Mr. Coates to sustain a concussion-type brain injury. I would note that Dr. Shemtov also testified that in his practice as an emergency room physician he had seen “very, very minor injuries produce concussive symptoms”.

[337] Second, I think it is unlikely that Mr. Coates could have faked the symptoms of a concussion after the accident so convincingly as to fool all three of Dr. Shemtov, Mr. Rambukkana and Ms. Bardoul, whose evidence I substantially accept. While they all based their opinion that Mr. Coates was suffering from a concussion largely on his self-reporting of his symptoms, Mr. Rambukkana and Ms. Bardoul also performed physical tests on him, such as shining light into his eyes and having him track moving objects. I think Mr. Coates would have had difficulty convincingly faking his reactions to these tests.

[338] To this extent I accept Dr. Berger’s opinion evidence. I also accept Mr. Coates’s evidence about his symptoms in the days after the accident, and the progress of his recovery.

b) Were Mr. Coates’s actions after the accident non-volitional?

[339] However, I do not accept Dr. Berger’s further opinion that Mr. Coates’s concussion left him in a state of automatism for some time after the accident, or his conclusion that Mr. Coates was not acting volitionally when he drove away from the accident scene.

[340] The law has long recognized that head injuries can sometimes cause people to act non-volitionally: see, e.g., Bratty v. AG for Northern Ireland, [1963] A.C. 386; R. v. Rabey, 1980 CanLII 44 (SCC), [1980] 2 S.C.R. 513 at p. 537; R. v. Daviault, 1994 CanLII 61 (SCC), [1994] 3 S.C.R. 63 at p. 75. However, not everyone who suffers a concussion becomes an automaton. Dr. Berger implicitly recognized this when he acknowledged that he was more confident in his opinion that Mr. Coates had sustained a concussion than in his further opinion that Mr. Coates’s actions after he suffered the concussion were not volitional.

[341] In my view, Dr. Berger’s opinion that Mr. Coates’s actions were non-volitional is compromised by his limited knowledge of the evidential record. Among other things, he never spoke to Mr. Coates, whose own testimony at trial undermines a key foundational element of Dr. Berger’s opinion.

[342] In both his written report and his trial testimony, Dr. Berger attached great weight to what he understood were the observations made by the two tow truck drivers who had seen Mr. Coates at the roadside, Mr. Middleton and Mr. Vijayanathan. Dr. Berger treated his understanding of these witnesses’ anticipated evidence as one of the key foundational planks of his conclusion that Mr. Coates was “in an altered state of consciousness” that made his actions involuntary.

[343] In particular, Dr. Berger relied on Mr. Middleton’s anticipated evidence that Mr. Coates gave only short answers to the questions Mr. Middleton put to him as demonstrating that Mr. Coates “did have an altered level of consciousness and … was confused at the time”. In essence, the conclusion Dr. Berger drew was that Mr. Coates had “given simple one-worded answers” to Mr. Middleton’s questions because his cognitive functioning was significantly impaired.

[344] In cross-examination, Crown counsel suggested to Dr. Berger that Mr. Coates’s apparent reluctance to answer Mr. Middleton’s questions might have been a deliberate attempt on Mr. Coates’s part to avoid a confrontation. Dr. Berger rejected this possibility, testifying:

Not in this case. I think that he just didn’t have a directing mind and he was concussed. I think that there was no purpose to what he was – how he was responding – what he was doing because he was just concussed.

[345] The problem is that the Crown’s suggestion to Dr. Berger was based on Mr. Coates’s own trial evidence. Mr. Coates testified that he made a deliberate decision not to engage with Mr. Middleton because Mr. Middleton was acting aggressively, and he thought that if he said anything at all “he would’ve started a physical altercation for sure”. Mr. Middleton agreed in cross-examination that he had been angry and berating Mr. Coates, which gives some credence to Mr. Coates’s explanation for his actions.

[346] In short, on Mr. Coates’s own evidence he was capable of a degree of conscious and purposive action that Dr. Berger rejected as being inconsistent with his conclusions about Mr. Coates’s mental state. In my view, this substantially undermines Dr. Berger’s opinion that Mr. Coates was in a state of automatism after the accident.

[347] A second, although perhaps less significant problem in Dr. Berger’s opinion is his reliance on his apparent belief that Mr. Vijayanathan had described Mr. Coates as “acting weird”. In reality, Mr. Vijayanathan used this expression when describing a comment Mr. Middleton made on the radio before Mr. Vijayanathan arrived at the scene. He did not adopt this comment as his own opinion once he made his own observations of Mr. Middleton at the roadside.

[348] Expert opinion evidence is only valuable to the extent that its underlying premises are shown to be true: see, e.g., R. v. Abbey, 1982 CanLII 25 (SCC), [1982] 2 S.C.R. 24 at pp. 42-46; R. v. Lavallee, 1990 CanLII 95 (SCC), [1990] 1 S.C.R. 852, at pp. 892-97; R. v. Ratti, 1991 CanLII 112 (SCC), [1991] 1 S.C.R. 68, at p. 81; R. v. Molodowic, 2000 SCC 16, 2000 SCC 16; [2000] 1 S.C.R. 420, at para. 7. As Wilson J. noted in Lavallee, at p. 893, “[b]efore any weight can be given to an expert’s opinion, the facts upon which the opinion is based must be found to exist”. In my view, Dr. Berger’s opinion that Mr. Coates was in a state of automatism after the accident is largely based on factual assumptions that are not supported by the evidence. I would give this part of his opinion no weight.

[349] It follows that I am not satisfied on a balance of probabilities that Mr. Coates’s actions after the accident were non-volitional. Indeed, as I have already mentioned, Mr. Coates’s own position was that he was not seeking to raise the defence of automatism.

c) Did Mr. Coates intentionally fail to stop after the accident?

[350] In essence, Mr. Coates’s defence is that he did not intentionally fail to carry out his duties under s. 320.16 of the Criminal Code because he honestly believed that he had stopped a short distance away from the accident scene, as the section requires. He maintains further that he then made a good-faith effort to find Mr. Sweeney, which failed because he was still confused about where he was.

[351] I accept that an honestly held belief by Mr. Coates that he had stopped as required would afford him a defence. I also accept it is the Crown’s burden to disprove this defence beyond a reasonable doubt.

[352] However, I do not accept Mr. Coates’s evidence that he honestly believed that he had stopped a few hundred metres away from the accident scene, nor does his evidence on this issue leave me with a reasonable doubt. While I do accept that Mr. Coates was probably somewhat confused after the accident, I am satisfied beyond a reasonable doubt that he was not so confused as to fail to appreciate that he was continuing to drive away from the accident scene rather than stopping.

[353] I reach this conclusion for the following reasons.

[354] Mr. Coates’s own evidence is that as far as he knew he never lost consciousness and always remained aware of what he was doing, even though he felt that he was “in a fog”. He also maintains that he subjectively believed at the time that he had stopped soon after the collision, after driving only a few hundred metres past the accident site, and while he was still west of York-Durham Line.

[355] In my view it would defy credibility to imagine that Mr. Coates would not have realized that he was continuing to drive for 3½ minutes in a badly damaged vehicle with a flat front left tire, if he had remained fully situationally aware while he was doing this. Even if Mr. Coates’s concussion-induced confusion somehow affected his ability to accurately assess the passage of time, I find it impossible to accept that he would not have realized that he was driving a considerable distance in a barely driveable vehicle.

[356] Mr. Coates’s claim that he subjective believed that he pulled over to the side of the road very soon after the collision can only make sense if it is posited that he was either unaware of what he was doing for several minutes after the collision – that is, that he drove for some 3 kilometres in a state of automatism – or that his driving was volitional, but that he then forgot what he had just done.

[357] This second possibility would not afford him a defence. If his decision to keep driving was intentional when he made it, it would not matter that he can no longer remember making it. As Lord Denning noted in Bratty, at p. 409, “[l]oss of memory afterwards is never a defence in itself, so long as [the accused] was conscious at the time”.

[358] As I have already explained, I do not accept Dr. Berger’s evidence that Mr. Coates was in a state of automatism after the accident, at least to the degree of certainty necessary to make an affirmative finding on a balance of probabilities, as Stone requires, in order to conclude that Mr. Coates did not commit the actus reus of the fail to stop offence. However, the burden of proof on the issue of mens rea is not reversed. I must accordingly consider Dr. Berger’s opinion along with the rest of the evidence when deciding whether the Crown has proved mens rea beyond a reasonable doubt: see, e.g., R. v. Singh, 2022 ONSC 5011, at paras. 102-03.

[359] Importantly, I think that the possibility that Mr. Coates had no conscious awareness of what he was doing for several minutes after the collision is inconsistent with his own evidence, when his testimony is considered alongside the objective facts.

[360] Mr. Coates purports to remember realizing after the collision that he was in the wrong lane, and then steering back into the eastbound lane. The marks on the roadway establish that his SUV pulled back into its proper lane 38.32 metres after the collision. This was well before it reached York-Durham Line. It then remained in its proper lane for the rest of its journey.

[361] If Mr. Coates was aware of what he was doing immediately after the accident, as his own evidence suggests he was, I have considerable difficulty accepting that he then slipped into a state of automatism during which he drove for another 3½ minutes and travelled 3.5 kilometres without realizing what he was doing, either at the time or afterwards.

[362] This scenario is also not supported by Dr. Berger’s evidence. He repeatedly stated in his testimony that any period of extreme confusion following a concussion would begin “immediately after the impact”, even though other symptoms might only emerge later.

[363] The remaining possibility is that Mr. Coates drove in an automatistic state for the first few minutes after the collision before regaining his situational awareness. However, on this scenario his detailed memory of finding himself in the wrong lane and pulling back into the proper lane would have to be dismissed as a confabulation or a concoction. This would raise serious questions about whether any of his other purported memories can be treated as reliable and truthful.

[364] I also have considerable difficulty accepting Mr. Coates’s evidence that once he stopped and exited his vehicle he has a clear memory of seeing the lights of the York-Durham Line intersection to his right, and the start of the S-curve to his left. In reality, he was several kilometres east of York Durham line, on a straight stretch of road. There was no curve in the road visible to his west, and the next set of traffic lights were a considerable distance to his east. While I am prepared to accept that Mr. Coates was experiencing some degree of confusion at this point because of his concussion, there is no evidence that suggests that people experiencing concussions are prone to seeing things that are not there.

[365] Mr. Coates’s evidence about how he began walking “back to the S-bend” to look for the motorcyclist also makes little sense. There was no S-bend for him to walk back to, and it is hard to see how he could have failed to realize this, even if he was in a confused state. Moreover, if Mr. Coates really did form the intention of going to look for and help Mr. Sweeney, it is hard to understand why he did not also think to call 911. His status as a police officer makes this latter failure especially hard to accept.

[366] More generally, I find Mr. Coates’s evidence about his thoughts and actions at the roadside to be an unpersuasive mix of purportedly clear memories of some things, combined with excuses for other things that he attributes to his supposed confusion. For instance, he gave a clear and detailed account of his interaction at the roadside with Mr. Middleton and his reasons for not wanting to engage with him, but also claimed to then have virtually no memory of subsequent events at the police station. Moreover, it is oddly convenient that the things Mr. Coates now says he can clearly remember all happen to be about matters where the prosecution has evidence he wishes to rebut, such as Mr. Middleton’s testimony about their conversation and the things he overheard Mr. Coates saying on the telephone.

[367] The defence submits that Sgt. Cuff’s evidence that while she was blocking eastbound traffic from driving through the accident scene that she spoke to a man and woman who identified themselves as Mr. Coates’s parents corroborates Mr. Coates’s claim that he subjectively believed he was still west of York-Durham Line. The defence argues that it would make no sense for Mr. Coates to tell his mother to go to York-Durham Line if he had believed that he was at the side of Highway 7 several kilometres further east.[^2]

[368] The flaw in this argument, in my view, is that Mr. Coates’s parents did not testify. Without evidence from them, any conclusions about why they went to the accident scene and spoke to Sgt. Cuff would be speculative. Indeed, Sgt. Cuff only spoke to them at 8:16 p.m., which was fifteen minutes after Mr. Coates had been arrested and taken to the police station. While it is possible that Mr. Coates’s parents went to the York-Durham Line/Highway 7 intersection because that was where he told them he was, it is also conceivable that he told them he was on the side of the road four kilometres to the east, and they continued west and spoke to Sgt. Cuff only because by the time they arrived Mr. Coates had already been taken away by PC Zec.

[369] Finally, the testimony of the police officers who saw and spoke to Mr. Coates after his arrest does not lend any real support to his claim that he was in a state of great confusion that night. None of the officers noticed anything out of the ordinary in his behaviour or demeanour. The video evidence from PC Zec’s cruiser and from the police station is in my view essentially neutral, since Mr. Coates does and says very little on these recordings. However, if Mr. Coates was feeling as unwell as he now maintains he was, it is somewhat puzzling that he made no complaint to anyone at the time, particularly since he was in what was to him a familiar setting, and some of the officers he was dealing with were people he knew and had worked with.

[370] In summary, I find Mr. Coates evidence about his thoughts and actions after the accident largely contrived and incredible. I do not believe that he did not subjectively realize that he was driving away from the accident scene, and his evidence about this does not raise a reasonable doubt in my mind.

[371] To the contrary, I am satisfied beyond a reasonable doubt on all the evidence that when Mr. Coates drove away from the accident without stopping and rendering assistance to Mr. Sweeney, he knew what he was doing and was acting intentionally. It is unnecessary for me to reach any firm conclusions about the underlying motives for his actions, since unlike the predecessor s. 252 offence, s. 320.16 no longer requires the Crown to prove that Mr. Coates acted with the “intent to escape civil or criminal liability”.

[372] In short, I am satisfied that the conditions for criminal liability under s. 320.16(1) have all been established. Mr. Coates acknowledges that he knew that he had just collided with a motorcycle, which is something that would have been completely obvious to him. Instead of stopping and rendering assistance to the motorcyclist, he continued driving for another 3½ minutes, during which time he travelled 3.88 kilometres further down the road. I am satisfied beyond a reasonable doubt that his decision to keep driving was volitional and intentional. While I think it is likely that Mr. Coates did sustain a concussion during the collision, and accept that this may have contributed to his poor decision-making and bad choices, I am satisfied beyond a reasonable doubt that he was not rendered so confused that he was left unaware of what he was doing. I am satisfied that his actions after the accident were both volitional and intentional.

[373] It follows that I must find Mr. Coates guilty on the fail to stop count on the second indictment, which was previously Count 4 of the original indictment.

VII. Disposition

[374] In the result, I find Mr. Coates not guilty on Counts 1 and 3 of the first indictment, and guilty of the fail to stop charge that is now being prosecuted on the second indictment.

The Honourable J. Dawe

Released: November 3, 2022

ONTARIO

SUPERIOR COURT OF JUSTICE

HIS MAJESTY THE KING

– and –

NATHAN COATES

REASONS FOR JUDGMENT

Dawe J.

Released: November 3, 2022

[^1]: For scheduling reasons, some of the defence witnesses testified before the severance application was heard and decided. Their evidence was only relevant to the fail to stop charge, and it was common ground between the parties that if this charge was severed from the other counts and tried separately, the evidence of these witnesses would be deemed to have been called in the second trial.

[^2]: Although the defence initially objected to Sgt. Cuff giving evidence that the couple she spoke to identified themselves as Mr. Coates’s parents, on the grounds that their self-identification was hearsay, the defence has now withdrawn this objection and no longer disputes their identity.

I. Overview

II. The charges and the procedural history of the case

III. The evidence admissible on all counts

A. Mr. Coates’s drinking during the day

B. Data retrieved from the “infotainment system” of Mr. Coates’s SUV

C. Mr. Coates leaves Milliken Mills Park and drives east

D. The accident scene

E. Mr. Coates’s driving as he approached the S-curve

F. Stuart Sweeney’s evidence

G. Evidence regarding the time of impact and the speed of the vehicles when they collided

H. Evidence regarding the motorcycle’s high beam switch

I. Mr. Sweeney’s 911 call, his injuries, and the damage to the motorcycle

J. Sgt. Cadieux’s opinion evidence regarding the collision

K. The Nissan drives away from the accident scene

L. Stephen Middleton and Ajiththan Vijayanathan’s evidence

M. The police response and Mr. Coates’s arrest

N. Sgt. Cuff’s meeting with Mr. Coates’s parents

IV. General principles

V. The Charges on the First Indictment (Counts 1 and 3)

A. Count 1: Impaired operation of a conveyance causing bodily harm

1. The evidence bearing on the issue of impairment

a) Evidence from Mr. Coates’s softball teammates

b) Evidence about Mr. Coates’s presentation at the roadside after the accident

c) Evidence about how Mr. Coates presented while at 5 Division

d) Circumstantial evidence

2. Analysis

B. Count 3: Dangerous Driving Causing Bodily Harm

1. The essential elements of the s. 320.13(2) offence

a) The continued validity of the s. 249(1) dangerous driving jurisprudence under s. 320.13(2)

b) The Supreme Court of Canada dangerous driving jurisprudence

c) What the Crown must prove

2. Analysis

a) Actus reus

b) Mens rea

VI. The Separate Trial on the Fail to Stop Charge

A. The evidence admissible only on the fail to stop charge

1. Mr. Coates’s testimony

2. Evidence from other witnesses regarding Mr. Coates’s concussion symptoms

3. Opinion evidence of Dr. Ken Berger

B. Legal principles

1. The s. 320.16(1) fail to stop offence

2. The available defences

3. The burden of proof

C. Analysis and findings of fact

1. Mr. Coates’s evidence regarding events leading up to the accident

a) Mr. Coates’s alcohol consumption

2. Mr. Coates’s account of the accident

3. Mr. Coates’s mental condition after the accident

a) Did Mr. Coates suffer a concussion during the collision?

b) Were Mr. Coates’s actions after the accident non-volitional?

c) Did Mr. Coates intentionally fail to stop after the accident?

VII. Disposition

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Expert Witnesses

Issues

Statutory Provisions 3

Legal Tests 3

Legislation 3