CITATION: R v. Baljeet Dhaliwal, 2026 ONSC 4048

COURT FILE NO.: CR 24-766

DATE: 2026 07 10

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING

Simran Singh for the Crown

• and –

Baljeet Kaur DHALIWAL

Jennifer Hue and Daniel Stein for the defendant

HEARD: April 12-17, 20-21, 23, 2026

REASONS FOR JUDGMENT

D.E HARRIS J.

INTRODUCTION

1This prosecution arises out of a horrific motor vehicle collision. Tragically, Ms. Sharron Williams who was doing what most of us do everyday, driving her Nissan Rogue in bumper-to-bumper traffic waiting for a red light to turn green, was killed. There was no forewarning and nothing she could have done to avoid it. It was a cruel bolt from the blue.

2The accused, Ms. Dhaliwal, at the time of the collision at 9:30 a.m. on June 9, 2023, was driving a MiWay Mississauga municipal bus model 2013 New Flyer Xcelsior, number XD40 eastbound on Derry Road towards the intersection at Rexwood Road in Mississauga. There was a line of cars crawling very slowly forward. A shocking video from a neighbouring vehicle’s dash cam shows that the bus driven by Ms. Dhaliwal, without apparently slowing down, rammed into the line of cars at significant speed, causing a devastating chain reaction, crushing numerous cars in its path. Ms. Sharron Williams was driving the first car impacted by the bus. She died from the impact.

3The accused is charged with dangerous driving causing death. There are two main possibilities based on the basic evidence: One, the accused was inattentive and distracted. The evidence was that if she had applied the brakes as late as three seconds before the collision, it would not have occurred. In fact, strange as it is, the collision reconstruction evidence seems reasonably clear that the brakes did not operate to slow the bus until 3-4 seconds into the collision itself. This means that the total time in which the application of the brakes should have been applied but were not, was approximately 6-7 seconds.

4The alternative second possibility is that despite the efforts by Ms. Dhaliwal to stop the bus and brake its velocity, the brakes were faulty and did not work. Nothing could have been done by Ms. Dhaliwal.

5The absence of brake application for such a long period of time is strange. After all, the events prefacing the collision occur hundreds of times a day on Ontario roads. There is a line of cars waiting in queue. Occasionally, there will be a fender bender and a car will rear-end another, generally causing minor damage.

6But this case was different. The bus did not stop or even slow down. It ploughed pell-mell into Ms. Williams’ vehicle at full speed. It was slowed for the initial several seconds only by impacting the virtually stationary vehicles in front of it. Only after those 6-7 seconds went by—virtually an eternity in driving terms--was there any evidence of the brakes being applied, slowing the pathway of the bus. There were skid marks visible at that point and the bus finally came to a halt on the grass abutting the roadway.

7The total absence of braking both before the collision and during it for several more seconds is what makes this such a perplexing case. It calls out for an explanation. Here there was no evidence of a medical event suffered by the accused or anything similar like a bee sting as hypothesized in some of the cases such as R. v. Hundal, 1993 CanLII 120 (SCC), [1993] 1 S.C.R. 867. Nor has it been suggested that the accused deliberately rammed the cars.

8The footage from an internal camera on the bus shows Ms. Dhaliwal’s reflected image in the driver’s seat in the moments before the collision. The quality is not stellar but what is happening is clear. Ms. Dhaliwal has the steering wheel in her hands and seems attentive and alert. The Crown argued that the video also showed that she honked the horn just before the accident. The defence agreed. This showed alertness on Ms. Dhaliwal’s part, potentially refuting the allegation of operator error.

9The Crown argued that she was distracted and, on her phone, but that pertains to a time well before the collision and in my view, considering the video of what was happening moments before the collision, is virtually irrelevant. It could not have had any bearing on the cause of the collision. Similarly, Ms. Spence and Mr. Adjetey, passengers on the bus, both described acceleration after leaving the bus stop before the collision. And both describe being at the bus stop for longer than normal for the route which they are familiar with. The Crown places reliance on this evidence too. However, I put little stock in those observations: they were well before the collision and have only minimal relevance.

10Another factor raising the issue of brake malfunction is that the accused was heard to say in the immediate aftermath of the collision that the brakes had not worked. There are admissibility questions with respect to this evidence which I will address later. But the point is, looking at all the evidence in the case, a reasonable possibility that must be addressed is that the brakes failed. If that be the case, there was no human error and, on the case of dangerous driving causing death--a criminal allegation founded in negligence—the accused would have to be acquitted.

11In light of the brake malfunction possibility, it was important in the police investigation to examine and carefully scrutinize all evidence bearing on the integrity of the brake system. The same pertains to this trial. The brake issue is central. The Crown must prove the collision was caused by operator error, not the failure of the brakes, in order to prove their case on dangerous driving beyond a reasonable doubt. Or, to state the same formulation but from the defence perspective, the Crown must disprove beyond a reasonable doubt that the brakes malfunctioned, causing the collision.

12As to be expected given this evidentiary picture, the brakes and whether there had been a failure was the main battlefield upon which this trial was fought. It should be added here that the Crown was concerned that even though they might prove that it was the accused’s negligence in the operation of the bus that caused the collision and not the brakes, the dangerous driving charge may nevertheless not be proven. In my view this was not a realistic concern. If the accused was responsible for the deadly collision of the bus into the cars there could be no question that the driving was i. dangerous; and ii. a marked departure from the reasonable driver, the two constituent elements of dangerous driving causing death.

13This is not a case like R. v. Roy, 2012 SCC 26 or R. v. Beatty, 2008 SCC 5, [2008] 1 S.C.R. 49 (S.C.C.) where there were real questions on both the elements of actus reus and mens rea. In Roy, Justice Cromwell put the actus reus of the offence this way at para. 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 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 in original). 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. …

14In terms of the mens rea, Justice Cromwell said at paras. 36-37,

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 of 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).

15The voluntary failure to brake while slamming into a line of cars at significant speed could not be anything other than a dangerous act. In all practical terms, a meaningful inquiry into the driving itself is obviated by the stark facts of this collision. It is self-evident. Similarly, on the mens rea, it is inherently a marked departure from the reasonable standard of care to cause a collision like this one. It was not driving simply recklessly or merely being inattentive. This was a shocking departure from the reasonable standard of driving. It was an ongoing, continuing offence with a lengthy duration.

16For these reasons, this trial is about the facts and not the law of dangerous driving. If the driving can be fairly attributed to driver error and not the brakes, a finding of guilt must follow.

17Moving to the categories of evidence in this trial, they can be distilled into several: the eyewitnesses on the bus, the people who had contact with the bus afterwards including mechanics and police officers, and the two expert witnesses, one for the Crown and one for the defence. They interpreted the forensic evidence the most important of which was the Engine Control Module/Engine Control Unit, “ECM”. The accused did not testify. This judgment will deal only with the evidence bearing on the vital question of human error vs. equipment malfunction.

THE EXPERT EVIDENCE

18The two expert witnesses were the key witnesses in this trial. The qualifications of the Crown expert were not challenged but the Crown vigorously attacked the qualifications and, in argument, alleged bias against the defence expert.

19Brian McLaughlin was the Crown’s expert. He is an accident reconstructionist and has worked with Transport Canada as a collision and defect investigator since 2022. Before that, he was employed in the same capacity with the Ontario Provincial Police from 1996 to 2022. He has wide experience in collision investigations and mechanics and has provided expert opinion evidence in court over 60 times

20Jim Hooey was called by the defence. He has been a professor at Centennial College teaching heavy mechanics on trucks and buses full time for thirty years and thereafter part time for 5 years. He teaches transportation technologies to apprentices in Ontario. Most of his students are working towards getting their license for repairing vehicles. The subjects he has taught have included steering, suspension, brakes, fuel injection, electrical, electronics, A/C, computers, welding and truck\trailer repair.

21He has both an S (Automotive Service) and a T (Truck and Coach Service) license. He has an Air Brake Endorsement. Mr. Hooey has experience as an expert witness in the areas of tires, automotive, body damage and truck technology in both civil and criminal cases. He is certified as a Crash Data Retrieval Technician. He can download crash data from a so-called black box, CDR, or EDR. He has testified between 30-40 times in court as an expert.

22The Crown argues that he is not qualified to comment on the ECM and that he is biased. I would reject the allegation of bias out of hand. The Crown does not agree with some of Mr. Hooey’s opinions, arguing some are internally inconsistent. That is very different than laying a foundation for the appearance or actuality of bias of which I have found no evidence whatsoever.

23In fact, Mr. Hooey “wrote the book” on interpreting ECM. In “Automotive Technology” first published in 2015, he wrote several chapters including “On-Board Diagnosis Systems; On-Board Diagnostic System Diagnosis and Service; and Brake Systems.” He is certainly well qualified to comment on the ECM.

24There was some disagreement between the two experts on sundry matters with respect to the cause of the collision, and the integrity of the inspection of the bus. But there were probably more matters upon which there was essential agreement, than clear disagreement. A central issue is the interpretation and reliability of the data generated from the bus captured by PowerSpec, a software program created by the Cummins company, version number 11.0.057. This software records the ECM parameters in the engine sensors including from the brake pedal and throttle. The Crown described the ECM as the lynchpin of their case. I think that is correct. The Crown and defence disagreed with respect to some issues surrounding the ECM.

THE FLAWS IN THE INVESTIGATION

25As elaborated upon above, brake failure was a possible explanation for the accident from the outset. Unfortunately, an absence of rigor in investigating this most serious of cases hampered the Crown’s attempt to discount brake failure as the cause of the accident. There were numerous problems.

26The first set of problems occurred about three weeks after the collision when the bus was towed to a yard for its first inspection. It was not clear why there was so long a delay. The tow truck was attached to the back of the bus with the front wheels of the bus on the ground. After being towed for some time, the front of the bus began to smoke. The brake rotors were glowing red. There was a fire. It was quickly controlled, but the entire brake system in the front of the bus was consumed by the fire. This was major obstacle in the inspection of the brakes on the bus.

27The fire had been caused by the brakes in the front of the bus locking up. The cause of this was unclear. Mr. Hooey, the defence expert suggested it might have been caused by whatever caused the brake failure in the first place but that seemed to be merely an educated guess. However, Mr. McLaughlin did not disagree that the fire incident may have indicated that there was a brake issue of some kind with the bus.

28The mechanic assigned to inspect the bus, Keith Warner, drove it after the fire the short distance from where the tow truck had left it in the parking lot into the shop where he then inspected it. He thought that the brake rotors were still installed but other witnesses testified that the brake rotors were taken off the bus after the fire. That must be true. Mr. Warner probably put them back on. He had no notes from the inspection undertaken three years before other than a form he filled out measuring the rotors, the pads, recording the air pressures from the brakes, and listing what in the brake system needed to be replaced: everything in the front of the bus because of the fire.

29Both experts agreed that Mr. Warner’s inspection was substantially inadequate and superficial. It was to determine what parts needed to be replaced on account of the fire and the collision not for the purpose of determining if the brakes might have failed at the time of the collision. Both experts agreed that there should have been a full forensic inspection focussing on the brakes as the potential cause of the collision. Mr. Hooey listed 23 areas that were not inspected but should have been. Mr. McLaughlin agreed with many of these. In my view, this surprising lapse was not so much Mr. Warner’s responsibility as the person in the line of authority who gave him the woefully inadequate inspection instructions. The police did not supervise and direct the inspection as they should have. That is troubling. In my view, given the tragic loss of life and of Ms. Williams, no stone ought to have been left unturned and no expense spared in examining the bus.

30Mr. Warner measured the rotor wear and did a cursory review of whether the calipers were working properly. There were several aspects of the measurement of the rotors which was unsatisfactory, as was the inspection of the calipers. For example, he only measured the thinnest of the pads, not all as he should have. Again, both experts with varying emphasis, agreed on these inadequacies.

31The brake air pressure was measured with a gauge that went up to 100 pounds per square inch (PSI). The tests were videotaped. Mr. Warner commonly used the specific gauge he used in this instance. On all but one test, the pressure went well over 100 psi and was estimated by Mr. Warner as 125 psi. Both experts testified that using a gauge only going to 100 psi in these circumstances would lead to unreliable results. The results were rendered even less reliable by the fact that this specific gauge had been used by Mr. Warner for a long time. Continued use is more likely to distort the accuracy of the gauge. The pressure in the air lines was a crucial factor in determining whether the brakes were working properly at the time of the collision.

32There was one videotaped test of the rear brakes that showed the gauge only going to 70 psi. This rendered the test inconclusive. There was little explanation, but it was a cause for concern. The bus was dropping air and the pressure on this one brake was low.

33A water and soap test is often done to check for leaks in the brake lines. Here, it was only possible to do a brief test as most of the joints and lines are encased under the bus. A full inspection of the lines would take much more time and effort.

34The anti-lock braking system (ABS) sensor information was not downloaded. The circuits were burned out in the front of the bus. But Mr. McLaughlin would have checked the back ABS too. It could have tied into why the collision occurred he testified.

35Mr. McLaughlin, under an effective cross-examination by Ms. Hue, amended his original opinion in his report that the brakes were functioning properly. With all the information supplied to him in cross-examination, he could not now say that the bus was in good working order at the time of the collision. In re-examination, he resiled somewhat from this position but the concession made in cross-examination remains important.

36Both experts commented on the depiction in the video of the brake lights on the back of the bus flickering on and off after the initial impact. The left and right sides did not go on and off together; they were never really on together as would be expected of a vehicle’s brake lights. There was some conjecture that this flickering was indicative of the brakes being applied. But Mr. Hooey had never seen anything like this flickering in his experience. In my view, nothing can be taken from this evidence. It could well have been electrical malfunction from the force and destruction caused by the impact. It could have been the way the natural light was hitting the brake lights. This evidence was not significant and was essentially a red herring.

37Of critical importance, inexplicably, the bus was disposed of in March, 2025. There was no evidence or explanation to establish why it was destroyed although it makes sense that there was an economic motive, that is, to save the expense of storing it. Disposing of the bus was completely misconceived in a case of this seriousness, a homicide case. If this had not occurred, the superficial nature of the Warner inspection could probably have been rectified and the bus dissected down to the rivets, as it should have been.

38While the defence originally filed an application to stay the proceedings due to lost evidence--i.e. the bus--Mr. Stein wisely resiled from this position at trial. The issue is identical to that discussed in the Court of Appeal judgment in R. v. Bero, (2000) 2000 CanLII 16956 (ON CA), 151 C.C.C. (3d) 545 (Ont. C.A.). As in Bero, we do not know whether the lost evidence would have helped or hurt the defence. Given that circumstance, and in the absence of proven bad faith on the part of the authorities, a stay of proceedings would clearly be inappropriate.

39However, Justice Doherty in Bero held that the failure of the Crown to preserve the motor vehicle in that case negatively affected the fact-finding process. He said in the context of the jury trial in that case,

67 Where the failure to preserve evidence results in a breach of an accused’s s. 7 rights and where the defence has exercised reasonable diligence in attempting to preserve the evidence, I think the trial judge should also instruct the jury that the Crown was under an obligation to preserve the evidence and failed to do so, and that the defence cannot be faulted for not gaining access to the evidence before it was destroyed. These instructions would place the burden for the loss of the evidence on the Crown, where it belongs. These instructions may also help the jury assess the overall reliability of the investigative process which produced the evidence relied on by the Crown, and help the jury decide the significance, if any, of the absence of evidence that may have been available had the prosecution preserved all relevant evidence.

40Following this reasoning, the failure to preserve the bus without explanation is a serious matter. The defence cannot be faulted. Disposing of the bus constitutes a violation of s. 7 of the Charter: Bero, paras. 30-37. It contributes to the impression that this investigation was shoddy. The conscientious and careful approach expected in a homicide case was sorely lacking. That weighs significantly against the prosecution in its attempt to negate brake failure as the cause of the collision.

THE ECM EVIDENCE

41The ECM module contains data from the bus. It has general information recording the engine type and build, the vehicle model, the transmission, the bus’s options and many other details.

42Most importantly, the ECM records “events” in which there is rapid deacceleration: that is, a collision. The collision in this case was recorded on the ECM. It has columns for time before and during the deacceleration event, speed of the vehicle, throttle (accelerator), engine load and brake status, amongst others. In this case, the ECM showed that at about 19 seconds before the impact, the bus started to accelerate from a bus stop. As it began accelerating, it shows the throttle was at 100%, full acceleration. That continued right up to the time of impact and beyond.

43The bus accelerated progressively from 3 km/hr to 59 km/hr at the point of impact. Acceleration was still listed as 100%. The speed then deaccelerates from 59 km/hr to 51 km/hr after one second; 45 km/hr after two seconds; 40 km/hr after three seconds; 43 after four seconds; 38 km/hr after five seconds; 11 km/hr after six seconds; and 0 after seven seconds. The bus stopped then, according to the ECM.

44The brake status column on the ECM registers only as either off or on. There are no in-between values in the ECM for the brakes. Critically, with this collision, the brake status is not listed as “on” in the software read-out until five seconds after impact.

45The ECM supports the Crown’s case. The speed and acceleration show a steady, unremitting, acceleration to 59 km/hr until the collision. Most importantly, the ECM tends to show that the accused did not apply the brakes until about five seconds after the initial impact, thereby imputing full fault to the accused for the collision. After this point the bus stopped and there were skid marks on the grass, indicating that the brakes worked at that point.

46However, there are issues with the ECM. Perhaps chief amongst them is that the manufacturer of the ECM has published a disclaimer that the data it produces is not to be used for accident reconstruction. Mr. Hooey raised this in his report. It was not addressed in Mr. McLaughlin’s report. This is the disclaimer:

Cummins does not intend for the Electronic Control Module ("ECM") and/or the Electronic Control Unit ("ECU") to be used for purposes of accident reconstruction nor did Cummins design the ECM/ECU for purposes of accident reconstruction. The ECM /ECU does not retrieve sudden deceleration event information with requisite specificity for accident reconstruction. As such, the PowerSpec software is not intended to retrieve data from the ECM/ECU for purposes of accident reconstruction …

47The purpose of the ECM is for fleet management by monitoring how the bus is driven by each driver. It is not supposed to be used for accident reconstruction. The central problem in using it for accident reconstruction, as Mr. Hooey explained, is that it samples very slowly, only once per second. This is far too slow. The normal rate for this kind of device in a vehicle would be 500 kilobytes per second or more. Mr. Hooey also said in his report that although the throttle was 100% throughout, the engine load fluctuated significantly throughout the 19 seconds before the collision. He said this was inconsistent and indicative of a lack of reliability.

48Mr. Hooey also testified that it was strange and another indication of unreliability that the throttle numbers were either 100% or zero. There were also radically different mileage numbers between the dashboard and the ECM. The dashboard of the bus showed 710,188 kilometres. The ECM said mileage was far less, 29,842. Given that the bus was 13 years old, both experts agreed that a number this low was very likely inaccurate. The ECM might have been replaced at some point or it may have needed recalibration.

49Mr. Hooey went through the extensive maintenance records of the bus. He acknowledged that there is generally a lot of maintenance required for a bus of this type but he thought this bus was in the shop far more than it should have been. There were hundreds of work orders. The bus in his opinion was a “lemon.” A lot of the issues that sent it to the shop were with respect to the brakes. Mr. McLaughlin testified that after market parts can impact on ECM accuracy. It may not have been calibrated properly and there may have been wiring issues potentially as well.

50Another reliability issue is that the speed at the point of impact was 59 km/hr but then falls precipitously. But there is an unexplained irregularity. At three seconds into the collision, speed has fallen to 40 km/hr. But in the next second, it goes back up to 43 km/hr. It then falls to 38 km/h in the next second which is when the brake is first applied according to the ECM.

51With laudable industry, Mr. Singh researched the ECM reliability issue and discovered the case of R v Tabanao, 2020 ONSC 3501 at para. 278; conviction appeal dismissed in 2024 ONCA 85. The trial judge said in that case about the collision reconstructionist,

[276] If [the Crown expert] … were the collision reconstructionist on this case, he would calculate the speed from any and all physical scene evidence including, debris field, momentum calculations, photographs, damage to the vehicles, road measurements, without looking at the ECM data. He testified that the ECM data is used to confirm whether it fits the conclusions reached in the scene investigation. The ECM data must not be relied upon alone as gospel, unless there is no other scene evidence.

[277] However, there was no defence challenge to the ECM data analysis. On all of the evidence, the data extracted, and the analysis, and interpretation of the data is accurate and reliable. It is consistent with the evidence of the civilian (4) drivers and passenger who were eyewitnesses, and with staff SSgt Doolan's observations at the scene and conclusions.

[278] Despite the Cummins Disclaimer, he is satisfied that the data received from the Erb ECM would be accurate and reliable based on testing he has participated in over the years. The ECM data properly retrieved and interpreted is generally accepted by collision reconstructionists as accurate and reliable. [Emphasis added]

52There are a number of points upon which Tabanao can be distinguished from the instant trial. The ECM data was the subject of a strong challenge here, unlike in Tabanao. No one testified in this trial that the data of the ECM is generally accepted as accurate and reliable. Moreover, the comment from the case that the ECM must not be relied upon as gospel unless there is no other scene evidence is, with respect, an erroneous and confused legal formulation. It stands the correct approach on its head. The law is, put very generally, that if evidence is potentially unreliable, one may look for confirmation to bolster it. But if there is no confirmation, the evidence is even weaker and warrants redoubled, serious caution: R. v. Vetrovec, 1982 CanLII 20 (SCC), [1982] 1 S.C.R. 811 at para. 42. The fact is, this quote, properly understood, counsels caution when dealing with ECM evidence.

53Lastly, in this case, unlike Tabanao, Mr. Hooey explained the specific limitations of the ECM and, consequently, there was a specific underpinning for its low reliability quite apart from the disclaimer itself.

54The scene evidence shows that the bus collided with the line of cars, first of which was Sharron Williams’ Rogue, and either did not brake or did not brake sufficiently. On a general level, watching the video, the impact was enormous, causing a lengthy and devastating chain reaction. Skid marks indicating braking appear only quite a bit further down the road after the collision. The ECM is confirmatory to the extent that it shows that there was no braking, only further acceleration, at the time of the collision. That acceleration together with the failure to brake is the gravamen of the dangerous driving count before the court.

55However, what the ECM does not do and cannot do is demonstrate that when the module recorded that there was continued acceleration and no braking, that it was accurately recording how the driver was operating the bus. It may be that she was depressing the brake but because of a malfunction with the brake, it was not effective and did not get recorded on the ECM. That brings the inquiry back to questions about the reliability of the ECM. There are real and lingering doubts about the ECM reliability.

THE RES GESTAE ISSUE

56As Mr. Adjetey, one of the bus passengers, was getting off the bus in the immediate aftermath of the collision—about two minutes after--he had a brief conversation with the accused. He asked what happened and she said to him that the brakes on the bus had not worked. In her two calls to 911 soon after she got off the bus, she was very upset and distraught. She also said the brakes had not worked. The defence applies to have this hearsay substantively admitted for its truth. The Crown is opposed.

57In my view, the evidence is admissible for its truth as res gestae, also known as the spontaneous utterance exception to the hearsay rule. In R. v. Mullin, 2019 ONCA 890, at para. 41, the Chief Justice wrote,

The law permits the introduction of excited or spontaneous utterances as an exception to the rule against hearsay: a “statement relating to a startling event or condition … may be admitted to prove the truth of its contents if it is made while the declarant is under the stress of excitement cause by the event or condition”: David M. Paciocco & Lee Stuesser, The Law of Evidence, 7th ed. (Toronto: Irwin Law, 2015), at p. 191. In order for a statement to be admissible,

“[t]he stress or pressure of the act or event must be such that the possibility of concoction or deception can be safely discounted. The statement need not be made strictly contemporaneous to the occurrence so long as the stress or pressure created by it is ongoing and the statement is made before there has been time to contrive and misrepresent”: R. v. Khan (1988), 1988 CanLII 7106 (ON CA), 42 C.C.C. (3d) 197 (Ont. C.A.), at p. 207, aff’d 1990 CanLII 77 (SCC), [1990] 2 S.C.R. 531; R. v. Nurse, 2019 ONCA 260, at paras. 77-82; Ratten v. The Queen, [1972] A.C. 378 (P.C.). [Emphasis added]

58In Mullin, the Court admitted a 911 call made in circumstances quite similar to this case. The Crown, amongst other arguments, says that because the accused also said, erroneously, in one of the 911 calls that the hand brake was applied, the accused’s utterances after the accident are unreliable and should not be admitted.

59I cannot agree. The accused was clearly wrong about the hand brake. That is relevant but it must be remembered that the issue is threshold reliability, not ultimate weight: R. v. Khelawon, 2006 SCC 57 at paras. 2-3.

60A person could get one piece of evidence wrong but still cross the reliability threshold for admission. One inaccurate observation does not render all observations made by that person unreliable. So, while a relevant circumstance, the incorrect hand brake comment does not preclude admissibility.

61This was a terrible collision of a lengthy duration with enormous physical impact on the vehicles struck as well as everyone on the bus. The video shows the passengers being tossed around the bus like rag dolls during the collision. The accused was in shock and was upset and distraught in the aftermath. There would have been continuing trauma, shock and pressure from the accident on her. This is the key to the operation of the hearsay exception and renders the evidence admissible.

62I conclude that the pre-conditions for the hearsay exception are made out, based on the spontaneous utterance line of authority. However, I would use caution in assigning weight to the accused’s statements that the brakes did not work. The bus she was driving had just caused profound devastation, destroying several cars, particularly the deceased’s car. It is a common albeit not invariable reaction to causing this kind of terrible disaster to reach for ready made excuses to avert full responsibility for such dire consequences. No one can say definitely that this explains the accused’s statements here. But it does suggest that it would be unwise to give the exculpatory statements a good deal of weight.

FINAL VERDICT

63I return to the bewildering nature of this collision. Cars rear-end other cars regularly. There is momentary inattentiveness or mechanical incompetence perhaps. Other collisions are because people are driving too fast for the prevailing conditions and beyond their skills. Some people fall asleep at the wheel, a common cause of highway accidents. Of course, there are collisions caused by impairment by alcohol or drugs.

64In this case, on a clear day with perfect road conditions, the course of the bus was egregious. The three second lapse in approaching the line of cars is not that unusual. It could have been a result of distractions or daydreaming perhaps. But adding to these three seconds is the after-impact lapse of three or four seconds of an ongoing, continuing failure to brake while driving the other vehicles forward by sheer momentum. That is not your typical rear end collision.

65The bizarre nature of this collision makes it more difficult for the Crown to meet its burden of discounting brake failure. It is true that what caused this collision need not be proved as long as it can be said to be operator error. But, on the other hand, the absence of an explanation or at least a viable theory is disconcerting. Mr. McLaughlin mentioned pedal misapplication in passing, that is, mistaking the accelerator for the brake. That is speculative on this record. And the photos of the pedals on the bus showed that they were far apart making this unlikely. The pedal confusion would have to last for many seconds, including after the initial impact. That is certainly possible but seems unlikely. The impact would more than likely have shaken the accused to her senses and prompted her to brake reflexively.

66The Crown argued in final submissions that the accused was distracted. She overstayed at the bus stop and had to make up for lost time. Ms. Dhaliwal “misgauged the flow of traffic.” This theory is substantially contradicted by her reflected image in the seconds before the accident. She does not appear distracted. The Crown admitted that she sounded the horn which supports the conclusion that she was alert and doing what she could to stop the bus. And, ultimately, the Crown theory fails to grapple with the several seconds after the collision in which there was still no braking other than arguing it was from distraction and panic.

67Summing up, there are several strengths to the Crown case. The driving of the bus with no apparent braking until the very end of the collision duration is central. The ECM is powerful evidence in the Crown’s case, but it is far from conclusive. There are reliability concerns. Furthermore, the proven fact that the brakes worked properly moments before the collision at the bus stop and worked at least to some extent to stop the bus after the collision is good circumstantial evidence tending to show that the brakes were working properly at the time of the collision.

68On the other hand, for the defence, the botched inspection of the bus by the authorities including the unavailability of the bus for further examination is a predominant factor. There was a distressingly long litany of basic errors. Moreover, an important piece of positive evidence in the accused’s favour is her image reflected in the interior glass panel, showing that she appeared attentive and alert. I would also give some limited weight to her exclamation that the brakes did not work. As I have endeavoured to explain, the total lack of braking until the very end of the collision, on balance, at least to some degree supports the defence position that it was equipment error, not operator error.

69Taking all the evidence together, the mystery of what caused this accident has not been solved. Brake failure remains a viable possibility. Contrary to this, proof in a criminal case requires a high degree of certainty as expressed in the beyond a reasonable doubt standard. Reasonable doubt must be excluded. That standard, in my view, has not been achieved. The Crown has failed to convincingly remove brake malfunction as the cause of the collision. There is a reasonable doubt that Ms. Dhaliwal was responsible for the collision.

70For these reasons, the accused Ms. Dhaliwal must be found not guilty of the sole count in the indictment of dangerous driving causing death. The indictment will be so endorsed.

D.E HARRIS J.

Released: July 14, 2026

CITATION: R v. Baljeet Dhaliwal, 2026 ONSC 4048