COURT FILE NO.: CR-20-037 (Kingston)

DATE: 20220210

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

ROBBIE O’NEIL

Defendant

Elisabeth Foxton, for the Crown

Jodie Primeau, for the defendant

HEARD at Kingston: 29 and 30 November and 1, 2 and 6 December 2021

MEW J. (ORALLY):

REASONS FOR decision

[1] On 1 September 2017, on Highway 401 a few miles east of Kingston, the sun had risen at 6:29 a.m. It was a clear day and the roads were dry. The highway was in generally good repair. The lines on the road marking off the lanes and the shoulders were clearly visible.

[2] Earlier that morning, in the small hours, there had been an accident to the east of the intersection of Highway 401 and Joyceville Road. The highway was still closed because of that incident as dawn broke, and traffic was being diverted off the highway at Joyceville Road (exit 632).

[3] At 6:52 a.m. there was a line of stopped or slow-moving eastbound traffic waiting to leave the highway at exit 632. That is when an eastbound International transport truck operated by the defendant, Robbie O’Neil, failed to stop, and violently struck two vehicles which were in the line. The front of Mr. O’Neil’s tractor-trailer impacted the rear of each of a Chevrolet Orlando crossover style SUV operated by Ross Moulton, and a Chevrolet Cruze sedan operated by Ryan Donlon. As a result, the Orlando was crushed between the trailer part of the tractor-trailer combination and the median wall separating the east and westbound lanes of the highway. The Cruze was spun round and came to a rest against the median, in front of the tractor unit.

[4] Mr. Moulton, who was the sole occupant of the Orlando, was deceased at the scene. Mr. Donlon, who was also alone in his vehicle, received only minor injuries. Mr. O’Neil was uninjured.

[5] Mr. O’Neil now stands charged with the offence of operating a motor vehicle in a manner that was dangerous to the public, thereby causing the death of Ross Moulton, contrary to s. 249(4) of the Criminal Code of Canada.

[6] The onus lies on the Crown to prove both the actus reus and the mens rea of the offence of dangerous operation of a motor vehicle. These elements were succinctly described by Charron J. in R. v. Beatty, 2008 SCC 5, [2008] 1 S.C.R. 49, at para. 43:

(a) The Actus Reus

The trier of fact must be satisfied beyond a reasonable doubt that, viewed objectively, the accused was, in the words of the section, driving in a manner that was “dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place”.

(b) The Mens Rea

The trier of fact must also be satisfied beyond a reasonable doubt that the accused’s objectively dangerous conduct was accompanied by the required mens rea. In making the objective assessment, the trier of fact should be satisfied on the basis of all the evidence, including evidence about the accused’s actual state of mind, if any, that the conduct amounted to a marked departure from the standard of care that a reasonable person would observe in the accused’s circumstances. Moreover, if an explanation is offered by the accused, then in order to convict, the trier of fact must be satisfied that a reasonable person in similar circumstances ought to have been aware of the risk and of the danger involved in the conduct manifested by the accused.

The Evidence

[7] Three witnesses who were at the scene at the time of, or immediately after, the accident testified. In addition, the court heard from two experts, from a Ministry of Transportation witness, and from an individual who gave some evidence about the possible position of the sun and its effect on driving conditions. The defendant did not testify.

Admissions

[8] A number of admissions were made by the Crown, namely:

(a) There was no cell phone located by the police in the cell phone holder in Mr. O’Neil’s vehicle;

(b) There was no evidence collected regarding whether the radio in Mr. O’Neil’s vehicle was on or at what volume;

(c) There was no evidence collected regarding any impaired driving by substance on the part of Mr. O’Neil;

(d) There was no evidence collected regarding any distractions to driving, such as cell phone use by Mr. O’Neil;

(e) There was no evidence collected that Mr. O’Neil was tired, sleepy, overworked or driving too much.

Message Signs

[9] Louis Vachon, an employee of the Ministry of Transportation of Ontario, gave evidence about the variable message signs (“VMS”’s) placed on Highway 401 east of the accident location.

[10] As already noted, there had been an accident east of Joyceville Road earlier on the morning of 1 September. A number of VMS’s east of that accident scene provided notice of the closure of Highway 401 and the detour at exit 632. Two VMS’s located at Westbrook Road warned of the pending detour located 34 kilometres ahead. From 5:43 a.m. onwards, both of those signs were in French, reading, respectively: “AUT 401 DANS 34 KM DETOUR SORTIE 632 JOYCEVILLE” and “AUT 401 FERMEE DANS 34 KM DETOUR SORTIE 632 JOYCEVILLE”.

[11] Further east, at Sydenham Road, there were two more VMS’s, one in English, the other in French. The English sign, which was active from 1:30 a.m. onwards, read: “HWY 401 CLOSED 20 KM AHEAD DETOUR EXIT 632 JOYCEVILLE”.

[12] Mr. Vachon testified that these signs are designed to be readable from at least 150 metres away. He testified that someone driving at 100 km/h would be able to see the signs for several seconds, although he acknowledged that the signs would flash on and off for 2.5 seconds per phase, which could reduce the length of time that a message on the VMS was visible to passing vehicles.

On the Scene Witnesses

[13] Ronald Armstrong had left Brampton before sunrise that morning and was driving a Freightliner Cascadia transport truck hauling a triple axle dump trailer to Cornwall. He remembers seeing signs as he approached Kingston that there was a detour at Joyceville Road. He had a CB radio in his cab. There was chatter from even before Kingston about a detour eastbound because of an accident.

[14] Mr. Armstrong said that it was a beautiful sunny day. The roads were dry. The sun was, he said, “a little low in the sky”. After seeing the signs about the detour, he continued normally but kept his eyes open for traffic up ahead. As he approached Joyceville Road, he said that he could see traffic stopped about two kilometres ahead of him. As he got nearer, he could see that there was what he described as a long line of vehicles in the right (driving) lane waiting to exit the highway. A transport in front of him had its four-way flashers on. He was also able to see traffic coming up behind him in his mirrors. Immediately behind him there was another transport truck hauling hay. Then a car and a van - the Cruze and the Orlando, respectively.

[15] Mr. Donlon set out from his home in Kingston to travel to his place of work. He pulled onto Highway 401 at the Gardiners Road intersection at around 6:30 a.m. Mr. Donlon did not become aware of the diversion until shortly after getting to the Joyceville exit. He had not seen any highway signs warning about the highway closure or detour before then. Indeed, even as he approached the line of traffic exiting the highway, he thought the cause was construction.

[16] Mr. Donlon recalled that he had passed the Orlando on the highway. He could see it behind him as he slowed down for the exiting traffic ahead. The Orlando also seemed to be slowing down. The vehicle ahead of Mr. Donlon was a tractor unit hauling a hay trailer. He believes that the brake lights and four-way flashers of the truck were on. Mr. Donlon came to a complete stop. The vehicles ahead appeared to be exiting the highway one vehicle at a time.

[17] As Mr. Donlon reached for a coffee, he noticed a truck in his mirror – the defendant’s vehicle – rounding a slight bend in the road behind him. The truck was not slowing down. As Mr. Donlon put it, “I thought I was dead”. He had just enough time to drop his coffee and floor his accelerator pedal in an effort to get out of the truck’s way. He recalled the force of the accident as the truck hit him. He expected the minivan to have hit him as well. The hood of his car ended up facing the barrier wall a few hundred feet down the highway from the point of impact. His car was perpendicular to the lanes he had been travelling in. The transport truck was immediately to his left. He realised that he was still alive. Despite a cut on his left leg, he was able to exit his vehicle by the passenger door and ran down the highway to get away from the accident scene. He was aware that there were still cars going by, driving over the debris from the accident. He recalled in particular a Lexus coming past at perhaps as much as 60 km/h and hitting a piece of tire that had come off Mr. Donlon’s car.

[18] After Mr. Donlon had received assistance from another driver, he went back to the vehicles that had been involved in the accident. It was at this point that he became aware that the Orlando was tangled up with the trailer between the fifth wheel of the unit and the barrier wall. Mr. Donlon helped Mr. O’Neil out of his cab. He was not able to give much of a description but recalls finding Mr. O’Neil leaning over his wheel. Mr. O’Neil seemed to be in a state of what Mr. Donlon described as denial. He appeared to believe that he had only hit one car (Mr. Donlon’s). By this time Mr. McFadden was also there assisting. The defendant appeared unable to appreciate that two vehicles had been struck.

[19] Looking in his mirrors as he waited in the line of traffic exiting the highway, Mr. Armstrong had seen the transport truck approaching behind the car and the van that he had already noticed. It “seemed to be coming up a little quick”, he said. He couldn’t tell if the transport was slowing down. Although he says that he did not witness the initial collision, Mr. Armstrong heard the sound of the impact. As soon as he heard that first crunch, Mr. Armstrong was able to see everything getting pushed out. The van and the car were pushed into the passing lane, and then the van went in beside the truck on the left-hand side and the other car was turned to the side by the transport truck. Mr. Armstrong saw a tire come whizzing past him.

[20] After the accident, Mr. Armstrong pulled over onto the right shoulder. He went to see if he could help. He helped the driver of the car to see if he was all right – the driver had been able to get out of his vehicle. He then went and asked Mr. O’Neil if he was all right. Mr. O’Neil responded: “I think I just killed someone. How do you think I am”? Mr. Armstrong believes that Mr. O’Neil was standing on the median when he said that. They did not exchange any further words. Mr. Armstrong then went towards the van but quickly realised there was nothing he could do.

[21] Both Mr. Donlon and Mr. Armstrong were asked about the sun that morning. Mr. Donlon said that the sun was out but not directly in his eyes. He was wearing sunglasses. The sun was just rising around that time. He immediately added that “it’s a horrible piece of highway there”. Mr. Donlon, who at the time worked as a courier driver, acknowledged that his position in a Chevrolet Cruze would have been lower to the ground than a transport driver, and that he may have had a different sightline to someone sitting up in a transport.

[22] Mr. Armstrong said that he always kept a good pair of sunglasses to hand. He had been blinded by sun in the past while driving. In his experience, it would be dangerous to slam on the brakes because of being blinded by the sun. His practice was to put on sunglasses and, if necessary, lower the visor or adjust his seat.

[23] That morning, Mr. Armstrong said that around the time that he was driving past Kingston, the sun became an issue. He testified that he did tell the investigating police officers that the sun may have been an issue – it was, he said, “blinding at times”. However, at the time of the accident itself, there was a large transport in front of Mr. Armstrong that was blocking the sun.

[24] Kevin McFadden, an off-duty volunteer firefighter, was heading westbound on Highway 401. He did not see the accident itself but was caught by a plume of dust and debris coming from the eastbound lane and noticed a car and a tractor-trailer that appeared to have been involved in an incident. He pulled over, phoned 911 to report the accident and went to see if he could help.

The Professor

[25] The defence called David Haynes, a professor emeritus of astronomy at Queen’s University who, while not qualified as an expert, gave evidence about a video-taped journey which he had taken on 10 April 2021, a day on which, because of the cycle of seasons, the sun would have been in exactly the same position, and at the same time, as it was on 1 September 2017.

[26] Although Crown counsel did not object to the video taken by Professor Haynes being received in evidence, she argued that little weight should be attached to it. The different sensitivities of a digital recording and a naked eye meant that the recording could not be regarded as reliable. Furthermore, Professor Haynes acknowledged that he was not sure of the exact location of the accident (it was acknowledged that, in fact, the video ended just before the accident location). Nevertheless, the video depicted an intensely bright sun directly ahead of the videographer and just above the horizon as the vehicle he was in proceeded towards exit 632. The video also showed times when a transport truck ahead of the vehicle that Professor Haynes was taking his video from blocked the sun, with a dramatic change in visibility.

The Experts

[27] Sgt. John Martin is an experienced accident investigator employed by the Ontario Provincial Police. He was the assigned senior investigator and was on the scene within three hours of the accident. Two other accident investigators had arrived before him.

[28] Sgt. Martin described the configuration of the eastbound lanes of Highway 401 in the vicinity of the accident location. The highway has two travelled lanes in each direction, divided by a concrete “Jersey” barrier. There is a shoulder between the barrier and the passing lane. A yellow fog line marks the division between the passing lane and the shoulder. A broken white line marks the boundary between the passing lane and the driving lane. A white fog line marks the division between the driving lane and an asphalt shoulder.

[29] Approximately two kilometres west of the accident scene, there is a right hand curve in the road. There is a further slight right hand curve with a bit of a knoll 800 metres west of the point of the collision. Overall, there is a slight upgrade. The road is slightly crowned for drainage.

[30] All of the involved vehicles were examined. No defects were found which are believed to have contributed to the collision.

[31] There were tire marks at the scene. They were faint and had the appearance of “skip skids” that would have come from the trailer of the commercial vehicle as the vehicle braked. A gouge mark was identified where, it is believed, the O’Neil vehicle struck the rear of the Orlando and pushed it down. That mark was measured as 105 metres from the first tire mark. Sgt. Martin said that this was evidence of some braking but it would not have been “a hard braking activity”. Another gouge was believed to represent the Chevrolet Cruze. The Orlando and Cruze gouges were 17 metres apart.

[32] Data was obtained from the airbag control models of the Orlando and the Cruze. Five seconds before the event, the Orlando was travelling at 18 km/h with no application of the accelerator pedal. The brake was covered but not applied. At 1.5 seconds from the event, the accelerator was applied 6%, going up to 96% at 0.5 seconds from the event, leading to the conclusion that the accelerator pedal was pressed by Mr. Moulton. Based on the recorded change of velocity, Sgt. Martin estimates that the speed of the transport was close to 79 km/h when it struck the Orlando.

[33] The Cruze was accelerating slightly at 6 km/h 3.5 seconds pre-event. The brake light was off for the five seconds prior to the collision. 0.5 seconds before the event, there was full acceleration – as Sgt. Martin put it, “he’s floored it”. The change of velocity when the Cruze was struck from the rear was approximately 49 km/h.

[34] From the data recorded by Sgt. Martin, he concluded that the O’Neil vehicle was coming up from behind the Orlando and the Cruze at a much higher speed than either of those vehicles. It started braking approximately 104 metres before the first gouge made by the impact with the Orlando. This was where there was the first evidence of braking, but not all brakes locked up from that point to impact. Using a brake lag time of 0.5 seconds for air brakes in commercial vehicles, and assuming the constant speed of the O’Neil vehicle of 100 km/h with a 1.5 second perception and reaction time, Mr. O’Neil travelled an additional 55.6 metres. Using those values, Sgt. Martin estimated that Mr. O’Neil reacted to the slower traffic when he was approximately 160 metres back from it.

[35] The International (O’Neil vehicle) struck the rear of the Orlando in the eastbound driving lane, causing gouges and scrapes in the asphalt. The Orlando was pushed forward and it rotated counter clockwise towards the median wall. The International then struck the rear of the Cruze and pushed it forward, rotating it counter clockwise. It continued to push it down the highway to final rest.

[36] The International veered to the left during the collision and struck the median wall. The Orlando was pinned between the median wall and the left side of the trailer. The Orlando was facing west at final rest.

[37] The International came to rest on the left paved shoulder with the left side against the median wall. The front of the International was 153 metres from the initial gouge of the area of impact.

[38] The Cruze came to rest facing north, with its left side against the front of the O’Neil vehicle.

[39] Sgt. Martin ascertained that the slight right curve with a slight knoll was 0.6 kilometres west of the area of impact, which could be clearly viewed from that point. Further back to the west, at 0.8 kilometres, there was a blue “632” sign on the south shoulder. At that location the left tire track of the driving lane of the area of impact was still visible but harder to see due to the curve. This would have been close to the maximum distance that a person approaching the area of impact would have had a clear view of it.

[40] Sgt. Martin calculated that, assuming a speed of 100 km/h, Mr. O’Neil would have required 116.16 to 124.67 metres to recognise the hazard of the slower cars in front of him and come to a stop using 100% braking.

[41] Mr. O’Neil’s log books, which were retrieved in the course of the investigation, disclosed that on the three days preceding the accident, Mr. O’Neil had travelled from Brampton to Cornwall, leaving Brampton at 3:45 a.m. and arriving in Cornwall at around 8:45 a.m. From that, Sgt. Martin surmised that Mr. O’Neil was en route from Brampton to Cornwall at the time of the accident.

[42] Sgt. Martin was asked about the role that the sun may have played in the accident. He said that if the sun had been in the sky in such a position that it would blind drivers, he would want to know that and make a note of it. He acknowledged that he had reviewed the statements given by witnesses, including Mr. Armstrong, who had indicated that at certain points, the sun was blinding to drivers that morning. Sgt. Martin agreed that this would have been important information to know, but said that if he had felt that the sun had been a problem, he would have included it in his analysis.

[43] After the issue of the sun having possibly played a role came up at the preliminary hearing, Sgt. Martin did give the issue further consideration. He found that there had been no other collisions at that time on previous days and Mr. Armstrong’s was the only statement that at times the sun that morning had been blinding. Sgt. Martin observed that just prior to the accident location there had been curves. There were no statements saying that coming into the collision scene the sun was blinding, and no other witnesses had talked about the sun. He did not attach any significance to the fact that other vehicles had driven through the debris immediately after the accident (the suggestion being that this may have been as a result of them also being blinded by the sun). In Sgt. Martin’s experience, it was not unusual for other vehicles to drive through debris after an accident. Sgt. Martin did, however, make some calculations using a software program which uses data on the position of the sun at any given time and place, from which he ascertained that the sun was to the right of the collision at about 3.5 degrees above the horizon. Ultimately, his further consideration did not change his conclusion that the sun had not been a factor.

[44] The defence expert, Peter Williamson, took a different view of the potential role played by the sun. Using software similar to that consulted by Sgt. Martin, Mr. Williamson found that at the time of the accident, the sun would have lined up, to within one degree, with the road. In other words, it would have been almost directly in front of eastbound drivers. The height of the sun was just under four degrees above horizontal. In his opinion, for an eastbound driver, the sun would be straight ahead as one came past the bend. Assuming a driver was looking straight towards the sun, he said the hazard lights or brake lights of vehicles ahead would have been harder to detect.

[45] Asked about the Haynes video, Mr. Williamson’s opinion was that it depicted what he would have expected Mr. O’Neil to have seen, based on the latitude and longitude of the accident scene. As a result, Mr. Williamson said that the witness description by Mr. Armstrong that the sun was almost blinding at points did not surprise him.

[46] Mr. Williamson explained that, as a general rule, it is difficult to perceive the speed of slow-moving vehicles ahead. Both Sgt. Martin and Mr. Williamson made reference to the work of Dr. Jeffrey Muttart, who currently holds the position of Director of Research, Consulting Services at the Crash Safety Research Center in East Hampton, Connecticut, USA. An article co-authored by Professor Muttart, Muttart et al., Relationship Between Relative Velocity Detection and Driver Response Times in Vehicle Following Situations, SAE Technical Paper Series, 2005-01-0427 (2005 SAE World Congress), notes that slow-moving traffic can be a particularly difficult hazard. Several studies reviewed show stopped and slow-moving lead vehicles represent more than 70% of all rear end crashes.

[47] According to Mr. Williamson, the effect of this phenomenon, coupled with a blinding sun, could have been cumulative. If there was a single line of vehicles ahead, then looking into the sun, it may have appeared to Mr. O’Neil that there was just one vehicle ahead. The sun might also have had an impact on when Mr. O’Neil was able to recognise that he was coming up on vehicles ahead of him dangerously fast. Taking Sgt. Martin’s distance of 600 metres from the accident scene, where there would have been a clear view of the road ahead, and assuming that Mr. O’Neil did not have prior knowledge about the traffic queue, a silhouette ahead would not necessarily have meant much to him. And at 100 km/h, that 600 metres would have been covered in 22 seconds.

[48] While Mr. Williamson acknowledged that his analysis and that of Sgt. Martin about how far a vehicle would travel and how long it would take to stop was very similar, the main difference between them was when the hazard ahead of Mr. O’Neil would have become recognisable as such. Mr. Williamson explained how, using essentially the same software program that Sgt. Martin had used (although Mr. Williamson’s version was a more recent one), different results were obtained depending on various inputs that were used. Mr. Williamson explained that there were details that Sgt. Martin had not inputted which affected the ultimate results produced by the program. For example, there were subtleties associated with the input of topographic factors. Indeed, Mr. Williamson felt that Sgt. Martin’s numbers would more accurately reflect driving on a cloudy day.

[49] Mr. Williamson did acknowledge that if there had been evidence that Mr. O’Neil had some warning of the hazard ahead - for example, if he had his CB radio on and had heard about the traffic queue ahead - his conclusions would be different. But based on the information available to him, in the circumstances as he understood them, and in particular having regard to the possible effect of the sun, Mr. Williamson’s opinion was that the accident was unavoidable.

Analysis and Findings

[50] Driving is an inherently dangerous and complex activity. However, it is one that the prosocial needs of society tolerates. As Charron J. wrote at para. 34 in Beatty, even the most able and prudent driver will, from time to time, suffer from momentary lapses of attention. Such lapses may result in a conclusion that the conduct, viewed objectively, falls below the standard expected of a reasonably prudent driver. In those circumstances, as already explained, the actus reus of the offence of dangerous driving causing death will be met. However, the law does not lightly brand such a person as a criminal. Only if the Crown has also proved beyond a reasonable doubt that the conduct amounts to a marked departure from the norm expected of a reasonably prudent driver will a finding of guilt be recorded.

[51] Furthermore, in having regard to all of the circumstances, the tragic consequences of Mr. O’Neil’s driving are not a relevant consideration. The law makes clear that it is the manner of an accused’s driving that should be considered, not the consequences of the crash (R. v. Tabanao, 2020 ONSC 3501, at para. 415).

[52] As the Crown acknowledges, the case law varies widely because these cases are so fact dependent.

[53] In R. v. Parkin, (2004) 18 M.V.R. (5th) 297 (ON SC), C. M. Speyer J. observed, at para. 27: “Tractor-trailers have the potential to do great harm such as one observes in the present case. Drivers operating such large, heavy rigs with the capacity to create so much havoc must be especially vigilant. That is because such tractor-trailers cannot stop safely if they do not observe a reasonable distance”. While that case involved an accident that occurred in a construction zone where findings of fact were made that the truck driver was travelling too fast in the circumstances and had failed to maintain a safe distance between him and the vehicle that he eventually struck, the Crown nevertheless submits that the actus reus of an offence committed by a professional driver requires the court, in taking into account all of the circumstances, to include factors such as observation of road signs, maintaining a safe speed and a safe distance from traffic ahead, and, if sun is a factor, taking appropriate action to mitigate the effect.

[54] The Crown submits that Mr. O’Neil should have been alert to the detour that he was approaching and to the possibility that there would be slow-moving or stopped traffic. He would have passed the electronic signs located at Westbrook Road and Sydenham Road. Although three out of four were in French, it would be reasonable to suppose that a professional driver travelling Highway 401 every day and, as appeared from Mr. O’Neil’s logbook, often going into Quebec, would understand road signs written in French. But even without that ability, one of the Sydenham Road signs which he would have passed, and which was seen by Mr. Armstrong (but not Mr. Donlon), advised that the highway was closed twenty kilometres ahead and that there was a detour at exit 632.

[55] The Crown places emphasis on the evidence of Mr. Donlon and Mr. Armstrong. Mr. Donlon testified that there were at least twelve trucks stopped ahead of him. The truck in front of him had its four-way flashers on. The sun was out, but not directly in his eyes. Mr. Armstrong also observed transports ahead of him and brought his vehicle to a halt and activated his four-way flashers. He estimates that he gained a visual of slowed down or stopped traffic ahead of him about two kilometres away.

[56] Although Mr. Armstrong described the sun as blinding at times that morning, by putting his visor down, sunglasses on and adjusting his seat, he was able to mitigate its effects. He had started to slow down for the traffic ahead of him about half a kilometre out.

[57] According to the Crown, nothing in this case should have been unexpected – the rising sun, the highway closures, or the possibility of slow-moving traffic. Other vehicles at the same time, in similar circumstances, had proceeded safely.

[58] The defence places considerable emphasis on the conclusions of Mr. Williamson and, in particular, on the issue of whether the rising sun was a factor. Defence counsel submitted that to the extent that the conclusions of Sgt. Martin and Mr. Williamson differed, Mr. Williamson’s opinions should be preferred.

[59] The defence reminded the court that the burden on the Crown to prove criminal liability in cases of dangerous driving is an onerous one. This is particularly so because many dangerous driving cases turn on circumstantial evidence. The Crown must show that the only rational conclusion to be drawn from the circumstances is a finding of guilt. In this case, unless the only inference to be drawn from the circumstances is that Mr. O’Neil had to have been aware that the traffic ahead of him had slowed, he should be acquitted. While fanciful or implausible explanations will not meet the test, a reasonable alternative explanation will (R. v. Villaroman, 2016 SCC 33, [2016] 1 SCR 1000, at para. 37).

[60] Despite the evidence given by Mr. Armstrong that, at times, the sun had been blinding that morning, Sgt. Martin did not investigate the issue until after it was raised at the preliminary inquiry. And while he did, then, consider the issue further, it was submitted that he had not done so with the same vigour or care that Mr. Williamson did.

[61] The defence referred me to R. v. Diallo, unreported, Ontario Court of Justice, Ottawa (Webber J.), 6 October 2021, in which the court, faced with a question of whether or not a setting sun would have posed an adverse driving condition, suggested that the question could be addressed, in part, “by employing human experience and common sense”. Webber J. continued, at para. 74:

Anyone who has driven a vehicle directly into a setting sun, has experienced what at times can be the debilitating effect of the sun’s glare on their ability to fully gauge their surroundings. There are moments when the setting sun can amount to far more than a mere nuisance. It can represent a very real distraction to drivers…It is unquestionably a circumstance that must be considered alongside all others present, when assessing the manner of driving…it is no less a relevant environmental circumstance than the dryness of the roads, of the clarity of the sky. The only difference is that the setting sun is an adverse condition that would render aspects of driving more challenging. It is a relevant consideration when pondering what the reasonable driver would do in the circumstances.

Actus Reus

[62] In R. v. Roy, 2012 SCC 26, [2012] 2 S.C.R. 60, at para. 34, Cromwell J. explained that the focus of the inquiry as to whether the actus reus has been established is on the risks created by the accused’s manner of driving and not, as already explained, the consequences. There must be a meaningful inquiry into the manner of driving:

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.

[63] The evidence does not disclose factors, other than the possible effect of the sun, that could explain Mr. O’Neil’s failure to apprehend what was going on ahead of him and take appropriate action. No evidence of distractions. No evidence of fatigue or impairment. No evidence of poor driving prior to the accident. Nor is this a case where he completely failed to see the hazard ahead of him and ploughed into the line of traffic. It is clear that he braked. And prior to doing so, it appears that he had been travelling at the speed limit.

[64] Nevertheless, the evidence shows that Mr. O’Neil did not see, or appreciate, the hazard ahead of him until it was too late for him to avoid the collision.

[65] I am prepared to accept that, as was the case with Mr. Donlon, Mr. O’Neil had not seen the one sign in English, some twenty kilometres to the west, warning of the highway closure and detour ahead. Or, if he had seen the sign, it had long since ceased to register with him. I am also prepared to accept that one of the circumstances to be taken into account in determining whether Mr. O’Neil’s driving, viewed objectively, was dangerous to the public, was the effect of the sun. It seems highly probable from the evidence that as he came round the slight bend 600 metres from the area of impact, the sun was just above the horizon and shining directly in his eyes in a cloudless sky and that it was, to use the words of Mr. Armstrong, “blinding at times”.

[66] Mr. Armstrong was driving a similar transport trailer combination to Mr. O’Neil’s. He was cross-examined on how he dealt with blinding sun. In his experience as a professional driver, Mr. Armstrong suggested that it would be dangerous to slam on the brakes if, while driving, one was suddenly blinded by the sun. Rather, he said, he would put on sunglasses and, if necessary, lower the visor and raise his seat. Usually by that time, the issue has been addressed. Mr. Armstrong had done these things well before the accident scene. The sun, he said, had been an issue since around the time he was passing through Kingston.

[67] As a matter of common sense, it seems to me that these are things that a reasonable driver would do. There is no evidence in the field notes, or elsewhere in the record, as to the position of visors in the cab of Mr. O’Neil’s vehicle. Nor is there any indication of whether, like Mr. Donlon and Mr. Armstrong, he was wearing sunglasses.

[68] However, I would accept, largely as a matter of common sense, that any driver, let alone a professional driver, driving east on Highway 401 just after dawn on a clear day, could anticipate that sun might be a factor. A reasonable driver would use visors and/or sunglasses to mitigate the effects. And, depending on the circumstances, slow down. A reasonable inference to draw from the circumstances in this case is that either Mr. O’Neil did not take any of these steps to mitigate the effects of the sun, which had already been up for about twenty minutes by the time the accident occurred, or if that he had done such things they had not been effective.

[69] I am therefore satisfied that the actus reus of the offence is made out.

Mens Rea

[70] While I am satisfied that Mr. O’Neil’s driving, objectively viewed, was dangerous, that, in and of itself, does necessarily not support the conclusion that his conduct departed markedly from the standard of care of the reasonable person in the circumstances.

[71] There is no evidence about Mr. O’Neil’s actual state of mind at the time of the accident. However, the existence of the required objective mens rea may be inferred from the fact that he drove in a manner that constituted a marked departure from the norm. This requires an examination of all of the circumstances to determine whether it is appropriate to draw the inference of fault from the manner of driving. As Cromwell J. explained in Roy, at para. 40:

The evidence may raise a doubt about whether, in the particular case, it is appropriate to draw the inference of a marked departure from the standard of care from the manner of driving. 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: Beatty, at para. 37.

[72] I accept the opinion of Mr. Williamson that a combination of the inherent difficulty in determining whether traffic 600 to 800 metres ahead is stopped or moving slowly, combined with the temporary blinding effect of the sun, could explain Mr. O’Neil’s failure to stop in time.

[73] In Roy, the appellant had pulled his recreational vehicle out from a stop sign at a difficult intersection and in poor visibility when it was not safe to do so. A tractor-trailer, travelling towards the appellant’s vehicle, was unable to avoid colliding with the appellant’s vehicle. The collision resulted in the death of a passenger in the recreational vehicle. Cromwell J. concluded, at para. 55:

However, on any realistic scenario consistent with the evidence, the time between visibility and impact would be only a few seconds. In my view, the appellant’s decision to pull onto the highway is consistent with simple misjudgment of speed and distance in difficult conditions and poor visibility. The record here discloses a single and momentary error in judgment with tragic consequences. It does not support a reasonable inference that the appellant displayed a marked departure from the standard of care expected of a reasonable person in the same circumstances so as to justify conviction for the serious criminal offence of dangerous driving causing death.

[74] I take a similar view to Mr. O’Neil’s conduct. In the absence of any evidence of other distractions, mechanical failings, loss of consciousness or driver fatigue, I accept as possible that Mr. O’Neil failed to apprehend and appropriately react to the sudden challenge of a blinding sun after he came past the slight bend and knoll in the highway. That possibility is supported by the evidence and by the opinion of Mr. Williamson. It is more than a fanciful possibility or an implausible explanation. It raises a reasonable doubt as to whether Mr. O’Neil’s driving displayed a marked departure from the standard of care of a reasonable person in the circumstances. In short, the evidence does not, in my view, warrant a finding of criminal liability.

[75] I am well aware that this conclusion will be disappointing to Mr. Moulton’s friends and family. As Chief Justice McLachlin explained in Beatty, at para. 71: “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”.

[76] The requirement that, to constitute criminal conduct, the care exhibited by an accused must constitute a marked departure from the norm, operates so that only a lack of care which is serious enough to merit criminal punishment will lead to a conviction.

[77] The tragic consequences of Mr. O’Neil’s driving on 1 September 2017 notwithstanding, I am not satisfied beyond a reasonable doubt that the care, or lack of care, exhibited by Mr. O’Neil constituted a marked departure from the standard of care that a reasonable person would observe in Mr. O’Neil’s circumstances.

[78] Accordingly, I find him not guilty on the charge against him.

Mew J.

Handed down: 10 February 2022

COURT FILE NO.: CR-20-037 (Kingston)

DATE: 20220210

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

ROBBIE O’NEIL

Defendant

REASONS FOR decision

Mew J.

Handed down (orally): 10 February 2022