BARRIE COURT FILE NO.: CR-23-00000113-0000 DATE: 20250603 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: HIS MAJESTY THE KING – and – JEFFERSON DANCE Defendant Indy Kandola, for the Crown Robert Geurts, for the Defendant HEARD: May 20, 21, 22, 28, and June 3 2025 REASONS FOR DECISION REGIONAL SENIOR JUSTICE EDWARDS Overview [ 1 ] Mr. Dance is charged with one count of dangerous driving causing death and one count of impaired driving causing death. On April 9, 2022 it is alleged Mr. Dance was driving his motor vehicle at a high rate of speed when he rear ended a vehicle driven by James Lynne. Mr. Lynne was vital signs absent at the scene of the collision. It is my intention to refer to the tragedy that happened as a collision as it was most definitely not an accident. The Evidence [ 2 ] Mr. Dance was driving a 2021 Tesla Model Y motor vehicle (The Tesla). Mr. Lynne was driving a red 2016 Nissan Juke (the Nissan). The collision occurred on April 9, 2022 at approximately 11:59 p.m.. The collision occurred on Mosley Street in the town of Wasaga Beach. [ 3 ] Mosley Street is a four-lane roadway in Wasaga Beach. It has two lanes eastbound and two lanes westbound. The posted speed limit is 50 km/h. [ 4 ] Prior to the collision, Mr. Dance had picked up a friend, Mr. Christopher Carbone. They went to a local restaurant where they ate a meal. The receipt for the meal was entered into evidence. It shows that two bottles of red wine were purchased. The red wine was consumed between Mr. Carbone and Mr. Dance. Mr. Carbone in his evidence suggested that he may have consumed more of the red wine than did Mr. Dance. In addition to the red wine, the receipt shows that two Bailey’s coffees were purchased. [ 5 ] After Mr. Dance and Mr. Carbone finished their meal, they then drove to a local bar called the Beacon. At the Beacon more alcoholic beverages were consumed. [ 6 ] Mr. Carbone testified that he was a passenger in Mr. Dance’s Tesla when they were driving home from the Beacon. Mr. Carbone could not recall how many drinks Mr. Dance had consumed. Mr. Carbone acknowledged that he himself was impaired. Mr. Carbone testified that he did not feel that he was putting his life in Mr. Dance’s hands when he was being driven home. Mr. Carbone did not believe there was any excessive speed. He stated that he could not tell how fast they were going. There was nothing in Mr. Carbone’s evidence to suggest anything untoward was happening with the Tesla. [ 7 ] Mr. Carbone was a passenger in the Tesla when the collision occurred, but he did not actually witness the collision take place as he was texting a friend at the time of the impact between the two vehicles. [ 8 ] Prior to the scene of the collision Police Officer Doug Nikolai (Nikolai) testified that he was in a parking lot approximately one to one and a half kilometres from where the collision occurred. His attention was drawn to what he described as a dark-coloured sedan. Nikolai used his radar detector to establish that this vehicle was travelling at 148 km/h. Having made these observations, Nikolai turned onto Mosley Street but did not give chase. Within less than one minute, he then came upon the scene of what can only be described as a catastrophic collision. [ 9 ] Nikolai testified that in addition to his observations of the motor vehicles involved, he noticed two male individuals standing in front of the Tesla. The taller male individual indicated that he was the passenger. The other male individual did not correct this statement. [ 10 ] Police officer Callum Wyness (Wyness) arrived at the scene of the collision at approximately 12:05 a.m.. When he exited his cruiser, he observed a large field of debris. He observed a red Nissan on its roof with a male driver, trapped inside. The red Nissan had significant damage to its rear end. He also observed a Tesla with significant front-end damage. [ 11 ] Wyness observed two male individuals outside of the Tesla. He identified Mr. Dance as being unsteady on his feet. He asked Mr. Dance for his name. His speech was slurred. Wyness overheard a conversation between a paramedic, and Mr. Carbone, in which Mr. Carbone said that Mr. Dance was the driver of the Tesla. He also observed Mr. Carbone point to Mr. Dance as the driver. [ 12 ] Wyness made observations of bruising to Mr. Dance’s left lower quadrant and abrasions to his left collarbone, which he testified was consistent with bruising typically caused by the driver’s seatbelt. He also observed bilateral contusions to both of Mr. Dance’s wrists which he stated were consistent with contact with the airbag and consistent with someone holding onto a steering wheel. [ 13 ] Wyness was cross-examined with respect to his observations related to any signs of Mr. Dance’s intoxication. In that regard, he testified that Mr. Dance had slurred speech and was unsteady on his feet. He did not smell alcohol. [ 14 ] Police Officer Eric Snow (Snow) was dispatched to the scene of the collision. When he arrived, he stated that wet snow had been falling, and the asphalt was wet. He, however, had no problems controlling his vehicle as he approached the scene of the collision. [ 15 ] When he arrived at the scene of the collision Snow stated that he observed two male individuals standing in front of the Tesla. An individual who identified himself as Mr. Carbone stated that he was the passenger in the Tesla. Mr. Carbone had slurred speech and red glossy eyes. Snow indicated that it was only Mr. Carbone who engaged him in conversation. Snow asked who was driving the Tesla. Mr. Carbone pointed towards Mr. Dance. Snow asked Mr. Dance what his name was and in slurred speech, he indicated “Dance”. [ 16 ] Mr. Dance was taken by ambulance to a local hospital where he was seen in the emergency department. While at the hospital, blood was taken from Mr. Dance. The appropriate steps were taken to ensure the continuity of the blood sample. The blood sample was then ultimately sent to the Centre for Forensic Sciences, where it was analyzed. [ 17 ] Daryl Mayers (Mayers) was qualified as a forensic toxicologist. An analysis was done of the blood which had been taken from Mr. Dance at 1:43 a.m.. Mayers testified that at 1:43 a.m., Mr. Dance’s blood-alcohol concentration was 270 mL in 100 mL of blood. [ 18 ] At the time when the collision occurred, 11:59 p.m., Mayers testified that Mr. Dance had a blood-alcohol level between 270 mL and 305 mL in 100 mL of blood. Mayers testified that in his scientific opinion, Mr. Dance’s ability to operate a motor vehicle would have been impaired. Mayers further testified that a blood-alcohol concentration of 50 milliliters in 100 mL of blood would have a significant impairing affect, and that the higher the level of alcohol in the body, the greater the effect on the individual. [ 19 ] In cross-examination Mayers conceded that to know if someone is impaired one would have to test the individual at the time of the collision. He further testified that he could only give an opinion that an individual would be impaired at the blood-alcohol level reflected by the facts of this case. [ 20 ] Ian Hester (Hester) is a police officer with the Ontario Provincial Police. He was qualified as an expert in collision reconstruction. [ 21 ] As part of the collision reconstruction Hester downloaded the information from the airbag control module which controls a passenger vehicle’s airbags, and other safety devices. The airbag control module of the Tesla also had an Event Data Recorder. [ 22 ] The information stored on the airbag control module of both the Tesla and the Nissan was downloaded. From this information, Hester was able to provide the court with evidence as it relates to the speed of both vehicles in the five seconds leading up to the time of impact. [ 23 ] In addition to the information provided by the airbag control module Hester also had available to him the Tesla onboard video leading up to the point of impact with the Nissan. The Tesla was equipped with seven cameras. Three of those cameras provided a view of the Tesla as it proceeded towards the point of impact. With the aid of the Tesla’s on-board video the Court was able to observe the collision as it actually occurred. [ 24 ] Hester testified that the Tesla was travelling between 196 to 165 km/h during the five seconds prior to the collision. The Tesla’s final recorded speed at the time of the collision with the Nissan was 165 km/h. The brakes of the Tesla were applied approximately 1.6 seconds prior to the collision. The Nissan was travelling in the left eastbound lane on Mosley Street at between 52 and 53 km/h. [ 25 ] Hester testified that a vehicle examination was conducted on both the Nissan and the Tesla. The examination revealed that neither vehicle had any apparent vehicle defects that would have contributed to the collision. Hester also testified that the road conditions, the weather conditions, and the lighting conditions were not a cause of the collision. [ 26 ] It was Hester’s ultimate opinion that the collision occurred because the Tesla approached the Nissan at a high rate of speed. [ 27 ] Hester was cross-examined at considerable length with respect to a theory that the Tesla may have been subject to a sudden acceleration that was not caused as a result of Mr. Dance applying his foot to the accelerator. Hester acknowledged that with an electric vehicle like a Tesla it is the voltage that provides the power to the engine. In cross-examination, Hester was taken to the “Event Data” chart contained in his collision reconstruction report. The Event Data provides information for the last five seconds prior to impact. The Event Data information supplies information about the vehicle speed and the percentage to which the accelerator pedal was being applied. Five seconds prior to impact the vehicle speed was 188 km/h and the accelerator pedal is shown as 100%. At 2.2 seconds prior to impact the vehicle speed was 196 km/h and the accelerator pedal is shown as 0%. The suggestion was made in cross-examination that the vehicle was in fact accelerating without the application of any pressure to the pedal. [ 28 ] To support the proposition that Mr. Dance’s Tesla may have been subject to a period of sudden acceleration prior to impact, Hester was taken to documents which were marked as Exhibit A. Those documents contain a letter from the US Department of Transportation to a Mr. Ronald A. Belt. The letter is dated July 3, 2023, and advises Mr. Belt that based on information Mr. Belt had supplied to the US Department of Transportation it would be reopening an investigation. The reopening of the investigation was based on information supplied by Mr. Belt that suggested “a theory that the subject vehicles contain a defect that can cause sudden unintended acceleration which may result in crash and injury”. The vehicles that were under investigation were Tesla Model 3Y, Model S and Model X for the production years 2013 to 2023. [ 29 ] Wi th the information found in Exhibit A, Hester was specifically asked whether or not he stood by his opinion that the cause of the collision was unrelated to any mechanical defect in Mr. Dance’s Tesla. Hester stood by his opinion and noted that there was no evidence in the Event Data Recorder that the brake pedal was ever applied prior to impact. Hester also noted that there was no indication of any brake marks or skid marks on the roadway leading up to the point of impact. [ 30 ] When questioned about the theory of whether or not there was a sudden acceleration in Mr. Dance’s vehicle, Hester testified that a driver is supposed to be in control of his or her vehicle, including the acceleration, braking and steering of the vehicle. Hester noted that even if there was any support for the theory that the Tesla had suddenly accelerated, there was no evidence to suggest that Mr. Dance had done anything to reduce the speed of his vehicle. Hester further testified that to get a vehicle travelling at 188 km/h as reflected at five seconds prior to impact one does not get to that speed “suddenly”. Hester testified in cross-examination that the high rate of speed was not as a result of any sudden increase in speed and that the driver of the Tesla would have had time to react to a speed in excess of 180 km/h by applying his brake. [ 31 ] At no time during the course of his cross-examination did Hester adopt the documents marked as Exhibit A. Those documents were never authenticated nor proven in evidence. For that reason, they were marked as a letter exhibit and did not become evidence that this court could consider as it relates to Mr. Dance’s guilt or innocence. The Law [ 32 ] Mr. Dance is presumed innocent of all charges that he faces. The Crown has the onus to prove beyond a reasonable doubt that Mr. Dance is guilty. Mr. Dance has no onus to prove anything. Mr. Dance called no evidence. He was under no obligation to do so, and I draw no inference as a result of his decision not to testify. [ 33 ] It has often been said that the standard of proof beyond a reasonable doubt is an exacting standard. Proof beyond a reasonable doubt is much closer to absolute certainty than it is to prove a balance of probabilities. I may only find Mr. Dance guilty if I am sure that he committed the offences charged. Impaired Driving Causing Death [ 34 ] For the Crown to prove impaired driving causing death the Crown must prove Mr. Dance’s ability to drive was impaired and that his impaired operation of the Tesla caused the death of Mr. Lynne. [ 35 ] The court must apply the test for the degree of impairment reflected in the decision of the Court of Appeal in R. v. Stellato (1993), 1993 3375 (ON CA) , 78 CCC (3d) 380 , affirmed [ 1994 94 (SCC) , 1994] 2 SCR 478 . At para 14 Labrosse JA held: If the evidence of impairment establishes any degree of impairment, ranging from slight to great the offence has been made out. [ 36 ] Simply put, the Crown must prove beyond a reasonable doubt that alcohol was a contributing factor in the ability of Mr. Dance’s ability to drive. [ 37 ] As for the mens rea component for impaired driving it is worth repeating the standard charge given to a jury as it relates to the intention of an accused person charged with impaired operation of a motor vehicle causing death. Specifically, the following: Did the accused intend to operate a motor vehicle after he had consumed alcohol? This element relates to the state of mind after the accused had consumed alcohol. To determine the accused’s state of mind, what he intended to do after he consumed alcohol, the court should consider: • what the accused did or did not do; • how the accused did or did not do it; and • what the accused said or did not say about it. The court should look at the accused’s words and conduct before, at the time and after he consumed the alcohol and operated the motor vehicle causing death. All these things, and the circumstances in which they occurred, may shed light on what the accused intended to do after he had consumed alcohol. If the court is satisfied beyond a reasonable doubt that the accused operated the motor vehicle causing death after he had consumed alcohol, the court may, but does not have to conclude, that he intended to do so. Use your good common sense. Dangerous Driving Causing Death [ 38 ] The offence of dangerous driving causing death requires the Crown to prove the following essential elements: (a) the prohibited conduct, which is that Mr. Dance operated a motor vehicle in a dangerous manner that resulted in death; and (b) the required degree of fault, which is a marked departure from the standard of care that a reasonable person would observe in all of the circumstances. [ 39 ] In dealing with the issue of the prohibited conduct the Supreme Court in R. v. Roy , 2012 SCC 26 , at paras 33-35 stated: [33] Beatty held that the actus reus for dangerous driving is as set out in s. 249(1)( a ) of the Code , that is, 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 in the amount of traffic that at the time is or might reasonably be expected to be at that place’” (para 43). [34] 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 driving, not the consequences, such as an accident in which he or she was involved. As Charron J. put it paragraph 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 driving that is relevant, not the consequences of a subsequent accident. In conducting this inquiry into the manner driving, it must be borne in mind that driving is an inherently dangerous activity, but one that is both legal and of social value brackets ( Beatty , at paras. 31 and 34). Accidents caused by these inherent risks materializing should generally not result in criminal convictions. [35] T o 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. [ 40 ] The Ontario Court of Appeal has recently clarified the actus reus and mens rea of dangerous driving in R. v. Kelly , 2025 ONCA 92 , at paras 52 and 53 , Sossin JA. stated as follows: [52] The actus reus of dangerous operation requires the Crown to prove that the accused was driving in a manner that is dangerous to the public, viewed on an objective standard, having regard to all the circumstances, including the nature, condition, and use of the place, and the amount of traffic that was or might reasonably have been expected to be there. It is the manner of driving, not its consequences, that matter. The mens rea requires the trier of fact to be satisfied beyond a reasonable doubt “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”: R. v. Beatty , 2008 SCC 5 , [2008] 1 S.C.R. 49 , at para. 43 . [53] The core question to be addressed in a determination of dangerous driving has been described by the Supreme Court as follows: “[W]hether the manner of driving which is a marked departure from the norm viewed in all of the circumstances, supports the inference that the driving was the result of a marked departure from the standard of care that a reasonable person in the same circumstances would have exhibited”: R. v. Roy , 2012 SCC 26 , [2012] 2 S.C.R. 60 , at para. 41 . [ 41 ] In this case the Crown relies in part on the speed at which Mr. Dance was driving to establish that he was doing so in a dangerous manner. Excessive speed by itself may constitute the actus reus of dangerous driving. See R. v. Richards , 2003 48437 (ON CA) , 2003 174 CCC (3d) 154 paras 9 to 11 . [ 42 ] I t is important to distinguish between the constituent elements of impaired driving and dangerous driving. In R. v. Karafa , 2014 ONSC 2901 , at para 123 , Trotter J. (as he then was) referred to the analysis undertaken by Doherty JA in R. v. Ramage (2010), 2010 ONCA 488 , at para 64 , as follows: An impaired driving charge focuses on an accused’s ability to operate a motor vehicle or more specifically on whether that ability was impaired by the consumption of alcohol or some other drug. A dangerous driving charge focuses on the manner in which the accused drove, and in particular, whether it presented a danger to the public having regard to the relevant circumstances identified in s. 249 of the Criminal Code . The driver’s impairment may explain why he or she drove the vehicle in a dangerous manner, but impairment is not an element of the offense. Both impaired driving and dangerous driving address road safety, a pressing societal concern. They do so, however, by focusing on different dangers posed to road safety. Impaired driving looks to the driver’s ability to operate the vehicle, while dangerous driving looks to the manner in which the driver actually operated the vehicle. [ 43 ] The test for the mens rea of dangerous driving causing death is set out by the Supreme Court of Canada in Roy , at para 36 , as well as in R. v. Chung , 2020 SCC 8 t, at para 14, as follows: 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. [Emphasis in original.] [ 44 ] In Chung at para 19 , the Court accepted that: … momentary speeding on its own can establish the mens rea for dangerous driving where, having regard to all the circumstances, it supports an inference that the driving was the result of a marked departure from the standard of care that a reasonable person in the same circumstances would have exhibited ( Roy , at para 41 ). [ 45 ] As it relates to the question of whether or not the consumption of alcohol is relevant to an assessment of the accused’s state of mind, the Court of Appeal in R. v. McLellan , 2016 ONCA 732 , at para 25 , stated: When dealing with a dangerous driving charge, it is not inappropriate in considering whether a driver's conduct is a marked departure from that of a reasonable driver in similar circumstances, to consider whether or not that person has consumed alcohol and if so to what degree before operating the motor vehicle – as I have said it goes to mindset and a willingness to assume risk. Theory of the Crown [ 46 ] Crown Counsel refers the court to Kelly which it is argued makes clear as it relates to the impaired driving causing death charge that all that the Crown is required to prove is that either Mr. Dance had a blood-alcohol level over .80, or that he was impaired. On the evidence Crown counsel argues that the blood-alcohol level of Mr. Dance is unrefuted and that his impairment is more than made out by the evidence of the forensic toxicologist Mr. Mayers. Mr. Mayers’ evidence was that at Mr. Dance’s blood-alcohol level his ability to drive would have unquestionably been impaired. [ 47 ] It is further argued by the Crown that but for the fact that Mr. Dance was driving his car on the night in question, Mr. Lynne would be alive today. It is argued that Mr. Dance’s driving was more than a significant cause of Mr. Lynne’s death, and that the evidence of Mr. Dance’s drinking is again irrefutable beginning approximately 6 1/2 hours prior to the time of the collision. During this timeframe, the Crown argues the evidence establishes that Mr. Dance was constantly drinking up until the time that he left the Beacon and entered his vehicle. [ 48 ] As it relates to the dangerous driving causing death charge, the Crown argues that Kelly sets out the test that this court must apply, specifically, whether as a result of Mr. Dance’s actions on the evening in question he created a risk in the manner in which he drove his vehicle. In that regard the Crown notes that Mr. Lynne was driving his vehicle in his lane at approximately the speed limit (50 km/h) when Mr. Dance for all intents and purposes, simply drove into him. The video evidence in that regard is irrefutable. [ 49 ] The Crown argues that the speed at which Mr. Dance was driving put the public at risk and that the video again establishes the rapidity at which the Tesla approached Mr. Lynne from behind. In the video the Crown notes that Mr. Lynne's vehicle almost appears to be stationary even though it was driving at 50 km/h. The Crown argues there is simply no explanation as to why Mr. Dance gives no appearance of taking any evasive maneuver, such as breaking prior to the impact. [ 50 ] Crown counsel notes that the sightlines on the roadway were good and that the road conditions were also good. The Crown summarizes its position by suggesting that Mr. Dance’s speed was “outrageous”; that he was driving with nearly 4 times the legal limit of alcohol in his blood; and, that Mr. Dance was “morally bankrupt” when he got into his vehicle driving at the speed that he did in a condition of significant impairment. Theory of the Defence [ 51 ] Mr . Geurts in his argument suggests that the case against Mr. Dance has been misunderstood from the beginning, and that an intervening factor, i.e., causation, was the reason why a trial in this case was required. Mr. Geurts argues Mr. Dance did not cause the collision. This court it is argued must have a reasonable doubt on the issue of causation. Mr. Geurts suggests that those involved in the investigation of the collision jumped to conclusions that might not otherwise have warranted a conclusion that Mr. Dance was responsible for the tragedy that unfolded. [ 52 ] Dealing first of all with the impaired driving causing death charge, Mr. Geurts referred to a number of witnesses who made observations of Mr. Dance but acknowledged that there was no smell of alcohol that they could detect. Mr. Geurts referred to one of the nurses who attended to Mr. Dance in the hospital who made a similar observation that she could not smell alcohol on Mr. Dance. [ 53 ] Given the absence of evidence concerning the smell of alcohol combined with the evidence of the server at the restaurant who couldn’t say how much alcohol he served Mr. Dance, Mr. Geurts argues that there may have been an alternative explanation for the tragic outcome in this case. [ 54 ] In closing argument, I asked Mr. Geurts whether or not he was challenging the authority upon which the police seized Mr. Dance’s blood. Mr. Geurts acknowledged that no challenge was brought in that regard. I also asked Mr. Geurts as to whether or not there was any challenge to the veracity of the blood-alcohol analysis offered to the court by the forensic toxicologist Mr. Mayers. In that regard, again Mr. Geurts candidly acknowledged that he was not challenging that evidence. [ 55 ] As it relates to the dangerous driving causing death charge Mr. Geurts challenged the evidence as it relates to Mr. Dance’s speed. He began his submissions by reference to the evidence of police officer Nikolai and the clocking of Mr. Dance’s vehicle by radar at 148 km/h. Not only did Mr. Geurts challenge whether or not the findings on the radar were reliable, he also challenged whether or not it logically followed that the vehicle that Nikolai clocked on the radar was in fact the same vehicle that he ultimately came upon at the collision site. Mr. Geurts suggested that between the location where Nikolai clocked the dark-coloured sedan, and where the collision occurred there were numerous roads that the vehicle could have turned off onto and as such there is a reasonable doubt as to whether or not the dark-coloured sedan observed by Nikolai was the one and the same vehicle as Mr. Dance’s vehicle at the collision site. [ 56 ] As to the speed of the Tesla in the five seconds leading up to the time of impact Mr. Geurts argues that the evidence of Hester is unreliable and in fact amounted to an “absurdity”. Mr. Geurts suggests that Hester “bent his evidence and broke it” when he went to an absurd position as it relates to the accelerator pedal being depressed in the critical five seconds leading up to the collision. Mr. Geurts attacked the reliability of Hester's evidence given that he was unaware of the information contained in the documents that were marked as Exhibit A. Mr. Geurts suggests that there is an “ongoing investigation of the Tesla” and that Hester was unaware of this investigation. [ 57 ] During the course of argument, I asked Mr. Geurts as to what evidence was before this court as it relates to his suggestion of an ongoing investigation. In that regard, Mr. Geurts suggested to the court that as an officer of the court he could advise the court that he had knowledge of the ongoing investigation. [ 58 ] Mr. Geurts in his argument fundamentally suggests that this court should have a reasonable doubt as to whether or not it was Mr. Dance who created the speed of his Tesla that ultimately led to the speed at the time of the collision. Mr. Geurts argues that the Crown should have stopped its case and considered the contents of Exhibit A in terms of whether, in fact, there was a defect in the Tesla that in fact caused Mr. Dance to be driving in excess of 190 km/h at the time of impact. Analysis [ 59 ] Before dealing with the question of whether Mr. Dance’s ability to drive the Tesla was impaired by alcohol, I have to deal with the question of whether the Crown has proven beyond a reasonable doubt that it was Mr. Dance actually driving the Tesla. The indictment charges Mr. Dance as the driver. It is not conceded as one of the agreed statement of facts that it was Mr. Dance driving the Tesla when it hit the Nissan driven by Mr. Lynne. [ 60 ] The main evidence establishing that it was Mr. Dance driving the Tesla comes from Mr. Carbone. He testified in-chief that he was in the passenger seat after he and Mr. Dance had left the Beacon. There is no evidence that Mr. Carbone was the driver at any time from when they left the Beacon until the collision occurred. At no time was Mr. Carbone’s evidence that he was the passenger ever impeached. [ 61 ] There is other evidence that makes clear that Mr. Dance was the driver of the Tesla. Immediately after the collision police officers attended at the scene together with paramedics. Questions were asked as to who drove the Tesla. Mr. Carbone stated that Mr. Dance was the driver and pointed towards him as the driver. [ 62 ] There is also evidence in the medical records filed as Exhibit 7. These records were admitted for the truth of their contents. A medical history is recorded on April 10, 2022 at 18:46 by Paula McFarlane RN. Her note records as follows: “Pt much more awake and alert .Pt Vitals repeated. Pt is stating he now remembers getting CT done. Has some recall of collision. Pt is also stating that he has spoken to his passenger that was with him. Pt is feeling better that the passenger that was with him is okay ….” (emphasis added) [ 63 ] Standing alone the aforesaid note is only one piece of evidence the court could consider dealing with the question of whether Mr. Dance was the driver of the Tesla. It is confirmatory of the evidence of Mr. Carbone that Mr. Carbone was the passenger. The Crown has more than met its onus of proving beyond any reasonable doubt that Mr. Dance was the driver the Tesla that struck Mr. Lynne. [ 64 ] In considering whether or not Mr. Dance’s ability to drive was impaired I have the following evidence. Mr. Dance had a blood-alcohol content at the time of the collision that ranged between 270 mL and 302 millilitres in 100 mL of blood. Based on this level of alcohol it was Mr. Mayers’ scientific opinion that Mr. Dance’s ability to operate a motor vehicle would be impaired. I have no evidence to contradict this opinion, nor do I have any reason to doubt that opinion. [ 65 ] In addition to the scientific analysis of the Mr. Dance’s blood-alcohol level and the impact that this would have on his ability to drive, I also have the evidence of the speed at which Mr. Dance was driving. One can only describe that speed as being almost unbelievable put in the context that he was driving at approximate 190 km/h in a 50 km/h zone. The video evidence demonstrates that Mr. Dance essentially drove into the back of the Nissan with no attempt to avoid what was clearly a collision about to happen. [ 66 ] I have no hesitation based on the totality of the evidence that at the time of the collision Mr. Dance’s ability to operate a motor vehicle was impaired by alcohol. Mr. Dance chose to consume the alcohol that is reflected in the evidence of Mr. Mayers. It is clear from the evidence of Mr. Carbone that it was Mr. Dance’s intention to drive home from the Beacon. Common sense leads to the one and only conclusion in this case and that is Mr. Dance chose to and intended to drive his vehicle while impaired by alcohol. There is absolutely no evidence that Mr. Lynne did anything that caused or contributed to the collision. Mr. Lynne was going about his business as a pizza delivery driver. He never knew what hit him. [ 67 ] The last issue this court must consider is whether the Crown has proven beyond a reasonable doubt that Mr. Dance is guilty of dangerous driving causing death. There can be no doubt that the impact of the Tesla with Mr. Lynne’s vehicle caused Mr. Lynne’s tragic death. The only issue is whether the actus reus and mens rea of the offence has been proven. [ 68 ] In determining whether the Crown has established the actus reus the question as defined by the Supreme Court in Roy , at paras 33 through 35 require this court to ask the question as to whether Mr. Dance’s driving, viewed objectively, was dangerous to the public in all of the circumstances. The focus of this court's inquiry must be on the risks that were created by the manner in which Mr. Dance was driving, not the fact that a collision with Mr. Lynne actually occurred. [ 69 ] In the cross-examination of Hester, the defence tried to get Hester to change his opinion on the basis of a letter dated July 3, 2023 (Exhibit A) from the U.S. Department of Transportation. The letter was addressed to a Mr. Belt. The letter responded to a package of materials from Mr. Belt entitled “Tesla Model 3 Susceptibility to Sudden Unintended Acceleration”. The July 3, 2023 letter advised Mr. Belt that the U.S. Department of Transportation and specifically the National Highway Traffic Safety Administration “will conduct a review of the petition and other pertinent information ….” [ 70 ] Hester stood by his opinion. Hester did not adopt any of the information contained in Exhibit A. The information contained in Exhibit A never became evidence. [ 71 ] Mr. Geurts argues that the opinion evidence as it relates to the cause of the collision is not reliable. He argues that Hester’s evidence was absurd because he would not “budge” from his position that there was no mechanical defect in the Tesla that could explain Mr. Dance’s high rate of speed. Mr. Geurts argues this court should have a reasonable doubt when it comes to what might be described as an alternative theory for the high rate of speed. That theory revolves around the contents of Exhibit A which the defence suggests confirms that the American National Transportation Board is investigating instances of “sudden acceleration” in the same model Tesla as Mr. Dance was driving. [ 72 ] In support of his alternative theory Mr. Geurts relies heavily on what he suggests are unexplained periods of acceleration in the five seconds pre-impact when the Tesla’s Event Data Recorder shows that Mr. Dance was not applying his foot to the accelerator. The evidence of the five seconds pre-impact are reflected in the chart below which is found in Hester’s report, Exhibit 13. Time (sec) Vehicle Speed(km/h) Accelerator Pedal (%) Pear Motor Speed (rpm)
- 5.0 188.0 100.0 12687
- 4.8 189.0 99.2 12728
- 4.6 189.0 94.4 12801
- 4.4 190.0 80.0 12877
- 4.2 191.0 76.4 12898
- 4.0 192.0 74.4 12966
- 3.8 193.0 74.4 13015
- 3.6 194.0 65.2 13081
- 3.4 195.0 58.4 13106
- 3.2 195.0 42.8 13132
- 3.0 196.0 36.8 13154
- 2.8 196.0 33.2 13148
- 2.6 196.0 31.6 13158
- 2.4 196.0 20.8 13159
- 2.2 196.0 0.0 13093
- 2.0 196.0 0.0 13048
- 1.8 195.0 0.0 13019
- 1.6 195.0 0.0 12921
- 1.4 193.0 0.0 12283
- 1.2 192.0 0.0 12238
- 1.0 187.0 0.0 12198
- 0.8 181.0 0.0 11640
- 0.6 177.0 0.0 11641
- 0.4 174.0 0.0 11348
- 0.2 171.0 0.0 10934 0.0 165.0 0.0 10631 [ 73 ] Underlying the theory advanced through Hester’s cross-examination is the suggestion that Mr. Dance could not have been initiating the increase in speed in the five seconds recorded on the Event Data Recorder because the chart shows his foot was not always fully depressing the accelerator. It is also argued that if Mr. Dance did not have his foot on the accelerator, then one would expect the Tesla to be slowing down – not accelerating. [ 74 ] Hester replied to this line of questioning and the suggestion that the Tesla was suddenly increasing its speed independent of any action on the part of Mr. Dance with the observation that “you don’t get to 188km/h or 196km/h suddenly. I suggest that the high rate of speed was not a sudden increase in speed and that the driver would have had time to react to a speed of 188km/h by applying the brake”. [ 75 ] Mr. Geurts suggests this court should reject the evidence of Hester as being unreliable and absurd. I respectfully disagree. I found Hester very measured in his evidence both in-chief and in cross-examination. Hester understood that his role as an expert was to assist the court and to be objective. He fulfilled that role. I found Hester to be a credible and reliable expert. [ 76 ] Mr. Geurts, as was his client’s right, did not disclose the contents of Exhibit A until the cross-examination of Hester. Hester had no opportunity to adopt the veracity of the contents of Exhibit A. Mr. Geurts argues the fact that Hester had never seen the contents of Exhibit A reflects on his credibility as an expert in the field of collision reconstruction. I again disagree. Hester examined the Tesla and determined that the brakes, steering and the accelerator were all in good working order and that they did not contribute in any way to the collision. [ 77 ] What is contained in Exhibit A never became evidence in this trial and this court cannot use what is found in Exhibit A as evidence to either establish Mr. Dance’s guilt any more than this court can use this evidence to raise a reasonable doubt about Mr. Dance’s guilt. In short, what is found in Exhibit A simply is not relevant. Mr. Dance had no obligation to call any evidence in this case. There was no onus on Mr. Dance to do anything in this case other than to put the Crown to the strict proof of the charges in the Indictment. Mr. Dance may have anticipated Hester adopting in some way the contents of Exhibit A – he did not. As such, this court places no weight on the contents of Exhibit A. [ 78 ] The manner of proof of what may be put to an expert has been addressed by the Supreme Court of Canada in a number of cases. In R v. Marquard , 1993 37 (SCC) , [1993] 4 S.C.R. 223, the Supreme Court said: [56] The proper procedure to be followed in examining an expert witness on other expert opinions found in papers or books is to ask the witness if she knows the work. If the answer is "no", or if the witness denies the work's authority, that is the end of the matter. Counsel cannot read from the work, since that would be to introduce it as evidence. If the answer is "yes", and the witness acknowledges the work's authority, then the witness has confirmed it by the witness's own testimony. Parts of it may be read to the witness, and to the extent they are confirmed, they become evidence in the case. This procedure was laid out in R. v. Anderson (1914), 1914 361 (AB CA) , 22 C.C.C. 455 (Alta. S.C.) and has been followed by Canadian courts. (See Holland v. Prince Edward Island School Board Regional Administrative Unit #4 (1986), 1986 178 (PE SCTD) , 59 Nfld. & P.E.I.R. 6 (P.E.I.S.C.), at pp. 21-22; Cansulex Ltd. v. Reed Stenhouse Ltd. (1986), 70 B.C.L.R. 189 (B.C.S.C.), at p. 193) . [ 79 ] The documents in Exhibit A were never admitted into evidence. As the Supreme Court in Marquard makes clear Mr. Geurts could not then rely on anything in Exhibit A to support a theory that the Tesla was experiencing a sudden uncontrolled period of acceleration immediately prior to the collision. Once the documents in Exhibit A became a letter exhibit it was open to the defence to have requested an adjournment so that the documents that had not been admitted into evidence could be properly authenticated and subject to cross-examination. No adjournment was requested. As such, there is no evidence before the court to support the theory advanced by the defence that the Tesla experienced a sudden period of uncontrolled acceleration. [ 80 ] The evidence establishes that at the time leading up to the collision Mr. Dance was driving his vehicle at an extremely high rate of speed. Approximately one minute prior to the collision a dark-coloured sedan is “clocked” by Nikolai on a police radar driving at approximately 148 km/h. Mr. Geurts argues this vehicle was not Mr. Dance as it could have turned off Moseley Street at any of the 20 intersections shown on Google Maps. I find this suggestion entirely fanciful. It would be an incredible coincidence that Nikolai clocked a dark-coloured sedan that was not Mr. Dance approximately a minute before he arrived at the collision site. I have no doubt that the vehicle clocked on the radar by Nikolai was in fact Mr. Dance. [ 81 ] Even if the collision with Mr. Lynne had occurred at a speed of 148 km/h that speed would have been well in excess of the posted speed limit of 50 km/h. The evidence establishes that, in fact, Mr. Dance increased his speed from when he was clocked by the police radar and that at the time of impact his speed was in excess of 190 km/h. I have no hesitation in coming to the conclusion that based on Mr. Dance’s speed alone he was objectively driving in a manner dangerous to the public. [ 82 ] As for the mens rea component of dangerous driving causing death, the Supreme Court in both Roy and Chung and now Kelly have directed the court to focus on whether the dangerous manner of Mr. Dance’s driving was the result of a marked departure from the standard of care which a reasonable person would have exercised in the same circumstances. It is suggested that the court ask two questions. The first is whether a reasonable person would have foreseen the risk and taken steps to avoid it if possible. I have no doubt that any reasonable person would have foreseen the risk of driving at the high rate of speed at which Mr. Dance was driving and that any reasonable person would have taken steps to avoid that risk. The second question is whether Mr. Dance’s failure to perceive the risk and take steps to avoid it was a marked departure from the standard of care expected of a reasonable person in Mr. Dance’s circumstances. I again have absolutely no doubt that not only Mr. Dance’s speed but also the fact that he was driving with a blood-alcohol level well in excess of the legal limit was a marked departure from the standard of care expected of a reasonable person. [ 83 ] Mr. Dance’s actions on the evening of April 9, 2022 do not reflect someone who was momentarily driving in excess of the posted speed limit. Mr. Dance was driving at a speed almost four times the posted speed limit. Mr. Dance chose to drive when his blood-alcohol level was grossly in excess of the legal limit. Mr. Dance’s manner of driving was well beyond a marked departure of the standard of care of a reasonable person. [ 84 ] There is no credible evidence that the Tesla was subject to a sudden period of acceleration. There is no evidence that Mr. Carbone was aware of any concerns being expressed by Mr. Dance that the Tesla was suddenly accelerating without any driver interaction with the accelerator pedal. There is virtually no evidence that Mr. Dance ever applied the brakes that might have reflected an attempt on his part to slow his vehicle down. The video from the Tesla demonstrates beyond any reasonable doubt Mr. Dance drove into the back of Mr. Lynne without any attempt to avoid the tragic consequences of what should have been a completely avoidable collision. But for Mr. Dance’s high rate of speed; a speed for which he was entirely responsible; and but for his high level of intoxication Mr. Lynne would still be alive today. Mr. Dance is guilty of dangerous driving causing death. ____________________________ EDWARDS, R.S.J. Released: June 3, 2025 NOTE: As noted in court, on the record, this written Ruling is to be considered the official version and takes precedence over the oral reasons read into the record. If there are any discrepancies between the oral and written versions it is the official written Ruling that is to be relied upon. BARRIE COURT FILE NO.: CR-23-00000113-0000 ONTARIO SUPERIOR COURT OF JUSTICE HIS MAJESTY THE KING – and – JEFFERSON DANCE Defendant reasons for decision Regional Senior Justice Edwards Released: June 3 , 2025