R v Black, 2021 ABQB 354

Court of Queen’s Bench of Alberta Citation: R v Black, 2021 ABQB 354 Date: 20210520 Docket: 190087403Q1 Registry: Edmonton Between: Her Majesty the Queen Crown - and - Dean Mitchell Black Accused _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice S. Leonard _______________________________________________________ Introduction [ 1 ] Just after midnight on August 24, 2017, Donald and Marcia Webb were awoken by the sound of a man calling for help.

When the accused, Dean Black, arrived on the doorstep of the Webb’s rural home, they saw that he was injured and covered in blood. He explained he was in a car accident and that the other occupant of the vehicle, Trisha Jabs, was dead. [ 2 ] Mr. Black is charged with dangerous driving and criminal negligence causing death. He asserts that he was not driving the vehicle and that he is not guilty of these offences. The Court must determine whether the Crown has proven beyond a reasonable doubt that Mr. Black was the driver of the vehicle, and if he was the driver, whether his driving pattern was criminal.

[ 3 ] The position of the Crown is that Mr. Black was the driver of the vehicle and that his driving constitutes both dangerous driving causing death and criminal negligence causing death. The Crown led both the inculpatory and exculpatory hearsay statements made by Mr. Black, but argues that his exculpatory statements are inconsistent with the physical evidence. The Crown contends it has proven its case beyond a reasonable doubt and that Mr. Black should be found guilty of both driving offences. [ 4 ] The Defence argues Mr.

Black’s exculpatory statements should be believed and that the Crown has not proven beyond a reasonable doubt that Mr. Black was the driver. Even if the Court finds that Mr. Black was the driver, the evidence is insufficient to prove that his driving pattern was criminal. Background and Evidence [ 5 ] Much of what transpired on the evening of August 24, 2017 is not in dispute. I will review the accepted evidence and then move on to a consideration of the issues. [ 6 ] Ms. Webb testified that the evening of August 23, 2017, it was windy and rainy.

Sometime between midnight and 12:30 am, the Webbs were awoken by the sound of someone calling for help. Mr. Webb went to the door and let in a man that looked like he had been in an accident. He was bruised and covered in blood. This was Dean Black, the accused. [ 7 ] Mr. Black told the Webbs that he was in a car accident and that his girlfriend was dead. The Webbs tried to sit the man on a bench, but he was unable to stay seated. He laid on the floor. Both of the Webbs recalled that Mr. Black was wearing socks without shoes. [ 8 ] The Webbs both testified that Mr. Black smelled of alcohol. According to Mr.

Webb, it was obvious that Mr. Black had been drinking. Mrs. Webb testified that Mr. Black smelled like a brewery. She recalled thinking that she hoped Mr. Black had not been driving because he was in no condition to drive. [ 9 ] Mr. Webb recalled that Mr. Black said something about his girlfriend not being able to drive a stick. He was screaming that he broke his back and was clearly in a lot of pain. He recalled Mr. Black saying that they were travelling at 240 km/hr. Mr. Webb recalled that his wife had a hard time believing a car could go that speed.

There is no dispute that the speed limit on the highway was 100 km/hr. [ 10 ] According to Mrs. Webb, Mr. Black kept repeating the same three pieces of information: (

i) that his neck, arm and hips were broken; (ii) they had been travelling at 240 km/hr and that he should not have let the other person drive because she did not know how to drive stick; and (iii) that his kids were at home alone, he did not want anyone to shoot his dog, and Colleen should be called to take care of the dog. [ 11 ] Mrs. Webb called 911, while her husband went outside to see if he could help the other person. The accident scene was not visible from the road. Mr. Webb located the car on the other side of a fence, lodged in some trees.

To him, it appeared that the car was travelling northbound and then went into the ditch on the west side of the road. He surmised that the car had cartwheeled. It landed on the other side of his neighbour’s fence, but the fence wires were not broken. The road was wet from the earlier storm, but he did not think it was still raining. Mr. Webb found Ms. Jabs lying in a ditch, about 40 yards away from the car, on the other side of the fence. [ 12 ] Mr. Webb determined that there was nothing that could be done to help her.

He took a look around, assessed that no one else was injured, and then went back to the house to check on his wife. Mr. Webb then returned to the end of his driveway to wait for the police to arrive. [ 13 ] Cpl Dawson and Cst. Greenlagh arrived on the scene at approximately 12:50 am in separate vehicles. Mr. Webb met Cpl Dawson and took him to the scene. Cst. Greenlagh went to the Webb residence. [ 14 ] Cpl Dawson testified that Ms. Jabs was approximately 40 feet from the highway in a ditch. Cpl Dawson checked for signs of life before concluding that she was deceased. He noted that there was an object around Ms.

Jabs’ body. He believed it came from the car, but he did not know what it was. He then went to the vehicle to look for further occupants or people that might be injured. [ 15 ] EMS arrived and pronounced Ms. Jabs deceased at 0058. Cpl Dawson instructed the fire department to conduct a broader search of the area. He then began photographing the scene. [ 16 ] The vehicle came to rest, upside-down, in a stand of trees. Some larger trees were knocked down by the force of the vehicle. The rear driver-side door was opened from the force of the impact and the glass in the door was missing.

The driver side door was closed with the window intact, the front windshield was damaged but in place, the sunroof glass and cover were missing, and both passenger side windows were missing. [ 17 ] The driver side rear tire was pushed off its rim, the front driver side wheel was gone, the passenger side front wheel assembly was gone, and the rear passenger side wheel was intact. There was severe damage to the front and rear of the vehicle consistent with an end-to-end rollover.

Various vehicle components were found scattered around the vehicle. [ 18 ] Cpl Dawson noted that the driver side seatbelt was extended and unbuckled. The passenger side seatbelt was retracted. He also noted that there was a pair of boots in the driver side footwell. The boots appeared to be suspended. He did not know whether they

were under or over the pedals, but they were faced opening up, with the heal toward the driver seat. It looked to him as though the bootswere stuck to the pedals. [19] While Cpl Dawson remained at the scene of the accident, Cst. Greenlagh went to the Webb residence. There, he found Mr.Black inside the foyer. He was laying on his back on the floor. His eyes were closed and he had blood on his face. Cst. Greenlagh couldsee a gash on Mr. Black’s left arm and some blood. Mr. Black’s feet were up on a bench and Cst. Greenlagh noted that he was notwearing any shoes. [20] It was clear to Cst. Greenlagh that Mr.

Black was in a lot of pain. Mr. Black complained that he thought his back was broken.Cst. Greenlagh asked Mr. Black what happened. Mr. Black responded that he was in a crash and that his wife was dead. He wasconcerned for his two young boys and told the Constable to call Colleen Doyle. Mr. Black could not advise Cst. Greenlagh where thechildren were. [21] Mr. Black said that he and his wife were driving north on Highway 759 toward Tomahawk. His wife wanted to drive. Mr.Black said he should not have let her drive and that he knew she could not drive a stick. [22] Cst.

Greenlagh asked questions to get a better idea of whether there was anyone else in the vehicle. Mr. Black responded thathe dragged his wife out of the vehicle and she was bleeding from her mouth. On cross-examination, Cst. Greenlagh testified that he wascertain this is what Mr. Black said. [23] Cst. Greenlagh rode in the ambulance with Mr. Black. He heard Mr. Black tell, Amanda Reid, the senior member of theambulance crew, he consumed 6 beer that evening and that his wife was drinking as well. They were travelling to Tomahawk to buymore alcohol. As soon as he heard this, Cst. Greenlagh chartered and cautioned Mr.

Black for impaired driving. Mr. Black responded:“yeah, whatever. I wasn’t driving.” [24] Ms. Reid was called as a witness. As will be discussed later in these Reasons, she recorded a number of statements that sheattributed to Mr. Black, key among which was that he had been sitting in the front passenger seat of the vehicle, that the vehicle rolled,and that he undid his seatbelt when he was upside-down. He got out of the vehicle and then went to get help. The Defence argues that thestatements recorded by Ms. Reid are unreliable and should be disregarded by the Court. [25] Dr.

Weinberg was qualified to provide expert opinion in the area of forensic pathology, including injury pattern recognition.He testified that he was involved in the post mortem external examination of Ms. Jabs. Dr. Weinberg testified that Ms. Jabs’ died as aresult of multiple blunt force injuries sustained as a result of a motor vehicle incident. Circumstantial Evidence [26] The Crown’s case against Mr. Black is circumstantial. The Court must make findings on two separate issues. First, has theCrown proven beyond a reasonable doubt that Mr. Black was the driver? Second, if Mr.

Black was the driver, has the Crown provenbeyond a reasonable doubt that his manner of driving constituted criminal negligence and/or dangerous driving? [27] In order to convict an accused on the basis of circumstantial evidence, the Court “must be satisfied beyond a reasonable doubtthat the only rational inference that can be drawn from the circumstantial evidence is that the accused is guilty”: R v Griffin, 2009 SCC28 at para 33.

Some courts use the word “reasonable” instead of “rational.” Both words are correct and have the same meaning: R vVillaroman, 2016 SCC 33 at paras 32-34 [Villaroman]. [28] In a circumstantial case, the Court must be cautious not to “‘fill in the blanks’ or bridge the gaps in the evidence to support theinference that the Crown invites it to draw”: Villaroman at para 26. [29] There is no obligation on the accused to prove facts that support explanations other than the guilt of the accused: “inferencesconsistent with innocence do not have to arise from proven fact”: Villaroman at para 35.

This is consistent with the well-known principlein R v Lifchus, [1997] 3 SCR 320, (SCC), at para 30, that a reasonable doubt “is a doubt based on reason and commonsense which must be logically based upon the evidence or lack of evidence.” (Emphasis added). [30] As noted by the Supreme Court of Canada in Villaroman, at para 38, “the line between a ‘plausible theory’ and ‘speculation’is not always easy to draw.” (Emphasis added).

The Court must ask itself (at para 38): ...whether the circumstantial evidence, viewed logically and in light of human experience, is reasonably capable of supporting aninference other than that the accused is guilty. [31] The Court in Villaroman affirmed at para 42 the following statement of the principle as articulated by the Alberta Court ofAppeal in R v Dipnarine, 2014 ABCA 328 at paras 22 and 24-25: Circumstantial evidence does not have to totally exclude other conceivable inferences; that the trier of fact should not act on alternativeinterpretations of the circumstances that it considers to be unreasonable; and that alternative inferences must be reasonable, not justpossible. [32] The evidence in this case must be considered as a whole: “[I]t is an error of law to subject individual pieces of evidence to thestandard of proof beyond a reasonable doubt; the evidence must be looked at as a whole”: R v Lemay, 2020 ABCA 365 at para 27, citingfrom R v JMH, 2011 SCC 45 at para 31; R v Morin, [1988] 2 SCR 345, (SCC); and R v Menard, [1998] 2 SCR 109, (SCC). [33] The law, as it relates to circumstantial evidence, operates together with the principles articulated by the Supreme Court ofCanada in R v W(D), [1991] 1 SCR 742, (SCC) [W(D)].

The Crown bears the burden of proving every essential element

of the offence beyond a reasonable doubt. This burden never shifts to the accused. To ensure that the burden remains on the Crown, inW(D), at page 758, the Supreme Court of Canada established a framework to assist in the assessment of the accused’s evidence. (

a) If you believe the evidence of the accused, obviously you must acquit. (

b) If you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit. (

c) Even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence whichyou do accept, you are convinced beyond a reasonable doubt by the evidence of the guilt of the accused. [34] In response to confusion over the application of the W(

D) test, the Alberta Court of Appeal in R v Achuil, 2019 ABCA 299 atpara 18 and R v Ryon, 2019 ABCA 36 at para 51 [Ryon] provided further guidance to be used when assessing the accused’s evidence.The Court of Appeal proposed the following amplification to address situations in which the accused’s evidence is not believed but thereis nonetheless a reasonable doubt: (

a) If the accused’s evidence denying complicity or guilt (or any other exculpatory evidence to that effect) is believed, or even if notbelieved still leaves the jury with a reasonable doubt that it may be true, then the jury is required to acquit. Further, the Court of Appealstressed that the trier of fact may not simply pick one version of events over the other: (

b) A trial is not a credibility contest requiring them to decide that one of the conflicting versions is true. If, after careful considerationof all the evidence, the jury is unable to decide whom to believe, they must acquit. [35] Just as the Crown’s case must not be considered in a piecemeal fashion, neither can the accused’s evidence be considered inisolation. The Crown tendered statements that Mr. Black made to the Webbs, Cst. Greenlagh and the paramedic, Ms. Reid. Mr. Blackacknowledged that his statements to these individuals were voluntary and therefore admissible. Mr.

Black did not argue that his Charterrights were violated in relation to any of these statements. [36] Some portions of the statements are inculpatory and contain admissions that are important to the Crown’s case. Other portionsof the statements are exculpatory. In particular, Mr. Black argues his assertions that Ms. Jabs was the driver raises a reasonable doubt asto his guilt. [37] An accused’s out of court exculpatory statement is not generally admissible hearsay. However, there is an exception where thestatement consists of both inculpatory and exculpatory components, i.e. it is a mixed statement.

According to the Supreme Court ofCanada in R v Rojas, 2008 SCC 56 at para 37 [Rojas], in such a case: ...where the Crown seeks to tender an accused’s out-of-court statement which contains both inculpatory and exculpatory parts, it musttender the entire statement, and the exculpatory portions are substantively admissible in favour of the accused... [38] If the exculpatory portions of the statement give rise to a reasonable doubt, the accused is entitled to the benefit of any suchdoubt.: Rojas at para 47. [39] Mr. Black spoke to the Webbs, Cst. Greenlagh and Ms. Reid.

He consistently said that he was not the driver, that Ms. Jabswas the driver, and that he should not have let her drive because she did not know how to drive “stick.” In assessing this evidence, as setout in the case R v Lake, 2005 NSCA 162, at para 22, I must consider the evidence as a whole: The analysis of both the accused’s testimony and the Crown evidence is done with full knowledge of all of the evidence that has beenadduced at the trial. The first W.(D.) question does not vacuum seal the accused’s testimony for analysis. In W.(D.). p. 757, Justice Corycited R. v.

Morin, (SCC), 1988 CanLII8 (SCC), [1988] 2 S.C.R. 345 which, at pp. 354-55, 357-58, rejected the piecemealanalysis of individual segments of evidence for reasonable doubt. The point of W.(D.)’s first question is not to isolate the accused’stestimony for assessment, but to ensure that the trier of fact actually assesses the accused’s credibility, instead of marginalizing it as alockstep effect of believing the Crown witnesses. [40] Although the evidence of an accused is often considered first under the W(

D) analysis, this is not necessary, nor is it advisablein all cases. In Ryon, at para 46, the Court cited with approval the following approach articulated by Doherty JA in R v Carriere (2001),OAC 115, (Ont CA), at para 48: I do not think that R. v. W.(D.), supra stands for that proposition [that the accused’s evidence must be considered first]. As a matter ofcommon sense, a jury could not assess an appellant’s evidence, except in the context of the rest of the evidence. A jury’s verdict mustflow from an application of the burden of proof to the entirety of the evidence...

The Accused’s Statements [41] Before turning to the physical evidence, I will first consider Mr. Black’s statements. Mr. Black made a variety of statements tothe Webbs, Cst. Greenlagh, and Ms. Reid, some of which were exculpatory and some of which were inculpatory. Counsel for Mr. Blackconceded that all of Mr. Black’s statements were voluntary and therefore admissible. However, counsel for Mr. Black argues that someof the statements are not reliable on two bases:

a) Mr. Black’s mind was altered due to the accident and the medical treatment hereceived, and

b) the statements made to Ms. Reid were not properly recorded and are not reliable.

a) Was Mr. Black in an altered mental state? [42] The Defence urges the Court to disregard a number of the statements made by Mr. Black on the basis that he may have beenin an altered mental state as a result of the car accident. The Crown argues that Mr. Black’s thinking was not altered and to the contrary,

some of the things he said were not only true, but contained a significant amount of detail, some of which is corroborated by other evidence. [ 43 ] Mr. Webb’s interactions with Mr. Black were limited to the initial contact at the door of the residence and getting Mr. Black settled on the floor. Once Mrs. Webb took control, Mr. Webb spent most of the time outside of the residence. Mr. Webb testified that Mr. Black seemed disoriented and was saying things that were not making sense. He noted that Mr. Black kept repeating things over and over. [ 44 ] This is consistent with the testimony of Mrs. Webb.

She testified that Mr. Black said the following things over and over again: 1. That he shouldn’t have let Ms. Jabs drive; she doesn’t know how to drive stick; 2. That his neck, hip and arm were broken; 3. That his kids were home alone. He wanted Mrs. Webb to call Colleen to help with the dog and not to let police shoot his dog. He was also able to provide a phone number for Colleen. [ 45 ] Mrs. Webb also testified that the accused said the road was slippery and they were travelling at 240 km/hr. [ 46 ] Although Mrs. Webb testified that Mr.

Black was going in and out of consciousness, she said he was pretty clear in the things he was telling her. She noted that he gave Mrs. Webb a phone number. To her this meant he could remember things. Although Defence counsel suggested to her that Mr. Black was at times incoherent, Mrs. Webb disagreed and remarked at how much sense she thought he made. [ 47 ] Cst. Greenlagh testified that when he arrived at the Webb residence, he asked Mr. Black what happened. Mr. Black said they had been travelling north on Highway 759 toward Tomahawk. He said that his wife wanted to drive and he shouldn’t have let her.

He said he knew she could not drive stick. [ 48 ] Mr. Black was concerned about his children and gave Cst. Greenlagh a phone number for Colleen. Mr. Black also said that he dragged his wife out of the vehicle and she was bleeding from her mouth. The accuracy of Cst. Greenlagh’s memory was challenged on cross-examination. In response, he said he was certain that Mr. Black said he dragged his wife from the vehicle. He further said this was a very important investigation and he took a great deal of care and attention in his notes. [ 49 ] The statements made by Mr.

Black to the Webbs are corroborated by the evidence of Sgt. Erin Matthews. She went to Mr. Black’s residence to find the children. They were not there. She then obtained the contact information for Colleen Doyle. Ms. Doyle was able to give Sgt. Matthews the name and contact information for a next of kin. Sgt. Matthews went to Ms. Jabs’ residence and discovered a large dog barking and growling. The dog did not look like it was going to let Sgt. Matthews into the residence, so she contacted Ms. Jabs’ father. The children, aged 3 and 4, were found in the home, alone and asleep just after 4 am. [ 50 ] Cst.

Greenlagh rode in the back of the ambulance with Mr. Black and the paramedics. He recalled Mr. Black saying he drank 6 beer and that his wife was drinking as well. Mr. Black said they were on their way to Tomahawk because they ran out of alcohol. He gave Mr. Black a police caution and let him know that he was a suspect in an impaired driving investigation. In response, Mr. Black said: “yeah whatever, I wasn’t driving.” He recalled Mr. Black being rude to the paramedics. [ 51 ] On cross-examination, Cst. Greenlagh denied that Mr. Black was incoherent. He acknowledged that some of the things Mr.

Black said made sense and other things did not. He explained he meant that in the context of the unfolding events, some things did not make sense. [ 52 ] Mr. Black made statements to Ms. Reid, both before and during the ambulance ride to the hospital. In regard to his mental state, Ms. Reid did not agree that Mr. Black was “out of it” as alleged by the Defence. [ 53 ] During the transit to the hospital, Mr. Black was given three separate doses of fentanyl. Ms. Reid explained that the medical grade fentanyl is used for pain management and it does not sedate the patient.

Patients given fentanyl for pain management are able to speak. When asked about the effect the fentanyl had on Mr. Black’s mood or behaviour, she responded that it decreased his pain levels. She did not agree that Mr. Black was unable to communicate as a result of the fentanyl. There is no evidence before the Court that fentanyl that is administered in a medical context causes the same effects as street drugs. [ 54 ] Dr. Chin, the emergency room physician, testified that Mr. Black was drowsy with intermittent combative behaviour.

He explained that intermittent combative behaviour indicated he was not consistently drowsy. Mr. Black’s level of consciousness was a combination of both. [ 55 ] Although the witnesses all generally testified that Mr. Black was in and out of consciousness, they each described periods of lucidity and an ability to communicate clearly and coherently. He was able to express concern for his children and his dog. He knew Ms. Jab was dead and he was also able to provide a phone number that ultimately led to police reaching Ms. Jabs’ next of kin.

He described where they were going and was able to indicate how much alcohol he had to drink. He described the speed of the vehicle and he asserted that he was not the driver. I am satisfied that Mr. Black was aware of what he was saying and he was not in an altered stated.

b) Are the statements recorded by Ms. Reid reliable? i. Amanda Reid’s evidence

[56] Amanda Reid was the senior member of the ambulance crew that responded to the scene. The evidence of Ms. Reid isimportant to the Crown’s case because she recorded a variety of statements purportedly made by Mr. Black while he was in her care. Ofparticular importance is a statement made by Mr. Black to the effect that he undid his seatbelt while he was upside down in the vehicle.Defence counsel argues that this statement should be given little or no weight. ii. Present memory revived [57] The Defence urges the Court to find that Ms.

Reid’s evidence is past recollection recorded and the Crown did not follow theproper procedure to adduce her evidence. It should, therefore, not be relied upon. The Crown responds that Ms. Reid’s evidence was anexample of present memory revived and it complied with the procedure for having a witness recall events through the use of an aid, inthis case, her notes. In the alternative, the Crown argues that the evidence is past recollection recorded and is admissible on that basis.The Crown further argues that the Defence did not object to Ms.

Reid’s evidence at the time of her testimony, waiting until closingarguments to raise this as an issue. This compromised the Crown’s ability to correct any deficiency, if there is one. [58] A witness’s memory can be refreshed using any number of aids. It can be refreshed by looking at a photograph, listening to asound, or smelling a specific odour.

In most cases, witnesses refresh their memories by reviewing their notes or statements madecontemporaneously with an event: see R v Nelson, 2020 MBCA 53 at para 9. [59] The distinction between present memory revived and past recollection recorded is explained as follows by Professor Alan W.Mewett, Q.C. & Peter Sankoff, Witnesses, vol. 1 looseleaf (Toronto: Carswell, 2004) at 13-3: True cases of “present memory revived” involve a witness who has actually had his or her memory refreshed. “Past recollectionrecorded” is probably best viewed as an exception to the hearsay rule, whereby evidence of which a witness has no current recall cannonetheless be admitted for the truth of its contents as it was recorded at a time when the witness was able to verify its accuracy. [60] Where the witness’s present memory is revived, the aid to memory recall becomes irrelevant.

Where, however, there is nopresent memory, the recording in notes or the like is normally admitted as evidence of the past recollection: R v Wilks, 2005 MBCA 99at para 19 [Wilks]. [61] In order to establish a foundation for a witness to refresh his or her memory, a number of elements must be satisfied. TheCourt in Wilks, at para 43, provides a list of elements from Thomas A Mauet, Donald G. Casswell & Gordon P. Macdonald, Fundamentals of Trial Technique, 2nd Canadian ed. (Boston: Little Brown and Co., 1984), at pp 102-103: (

i) Witness knows the facts, but has a memory lapse on the stand. (ii) Witness knows his report or other writing will refresh his memory. (iii) Witness is given and reads the pertinent part of his report or other writing. (iv) Witness states his memory has now been refreshed. (

v) Witness now testifies what he knows, without further aid of the report or other writing. [62] In contrast, the focus of the inquiry for past recollection recorded is on the accuracy of the recording. A

summary of thecriteria is contained in R v Meddoui (1990), 61 CCC (3d) 345 at 352, (Alta CA), cited with approval in R v Fliss,2002 SCC 16 at para 63 [Fliss]: (

i) The past recollection, must have been recorded in some reliable way. (ii) At the time, it must have been sufficiently fresh and vivid to be probably accurate. (iii) The witness must be able now to assert that the record accurately represented his knowledge and recollection at the time. Theusual phrase requires the witness to affirm that he “knew it to be true at the time.” (iv) The original record itself must be used, if it is procurable. [63] The third element of the inquiry is of particular importance. The Supreme Court of Canada explained in Fliss at para 64: ...

Obviously no particular form of words is required, but the court should not be left to speculate that because the witness ought to haveremembered whether the record was accurate, therefore the witness did so remember, despite his silence as to whether he did so or not.The admission of past recollection recorded but no longer remembered is an exceptional procedure and the conditions precedent to itsreception should be clearly satisfied. [64] Ms. Reid asked to refer to her notes early in her testimony.

The Crown then asked a series of questions that are typically usedprior to seeking permission for a witness to rely on his or her notes to refresh their memory. This questioning established that Ms. Reidhad prepared her notes right after the call, in a document called a Patient Care Report. She did not make any changes to the notes afterthey were completed. [65] The Crown then proceeded with the examination of Ms. Reid. During her testimony in chief, Ms.

Reid referred to her notesfor specific times, for example, what time she arrived at the scene, and for details such as the Webb’s address. [66] Once the basic information of the emergency call was provided, the Crown asked Ms. Reid to take the Court through the call.Ms. Reid responded that she would need to continuously refer to her notes. The Defence objected and urged that Ms. Reid testify fromher memory and only refer to her notes if she was having trouble with her memory.

[ 67 ] Ms. Reid agreed with the Defence’s request and then proceeded to provide a narrative of the call without reference to her notes. She provided a fairly detailed narrative of the events. The first time she asked to refer to her notes was when she was asked whether there was bleeding. She referred to her notes and was then able to continue with her answer. [ 68 ] The Crown then asked Ms. Reid to tell the Court what Mr. Black said to her. He encouraged her to refer to her notes when she did not recall. Without referring to her notes, Ms. Reid recalled that Mr. Black wanted to remove a C collar.

She recalled the smell of ethanol and recalled that Mr. Black said he had been drinking and they were on the way to the liquor store at the time of the incident. He also said there was another person in the vehicle. Ms. Reid recalled Mr. Black being concerned about the other person. She also recalled that Mr. Black was uncooperative and did not want to answer Ms. Reid’s questions. [ 69 ] The Crown asked how many drinks Mr. Black said he had. Ms. Reid responded, “six drinks.” The Crown then asked what kind of drinks Mr. Black said he had. Ms.

Reid asked to refer to her notes and then replied: “Drank six beer according to my notes.” [ 70 ] The Defence reminded Ms. Reid to put her notes down when she was done answering the question. The examination then proceeded as follows: Q: What did Mr. Black tell you about his position in the vehicle? A: He told me he was the passenger seat. In the front. Q: What did he say about the speed the vehicle had been travelling? A: He told me they were going approximately 240 kilometres per hour. Q: What did he tell you about how the accident happened? Either what caused it or how it actually unfolded?

A: I’d have to refer to my notes again. That it rolled unknown number of times and that he undid the seatbelt himself when it was upside down and the vehicle had stopped, and that he got himself out of the vehicle and then helped the driver, and then went to go get help at a nearby home where we found him. Q: What did Mr. Black say about seatbelts? I’m sorry? A: That he had taken his seatbelt off when he was upside down and that he helped the other person. [ 71 ] Defence counsel then objected on the basis that Ms.

Reid’s evidence regarding the seatbelt differed between her first answer and her second answer on this point. Having concluded that this was not a valid point of objection, the examination continued. Q: So as best I recall, Ms. Reid, my question was, what did Mr. Black tell you about the use of seatbelts? A: Let me refer to my notes to make sure it’s accurate. For seatbelts, states he was wearing a seatbelt and undid the seatbelt himself when he was upside down and the vehicle was stopped, which is something that we make a note of for vehicle accidents, whether somebody has a seatbelt or not.

Obviously, that can change their injuries, so that’s important for us to know. [ 72 ] Both the Crown and Defence counsel asked Ms. Reid a variety of questions about her notes and her note-taking practice. Her evidence establishes the following: (

a) Ms. Reid received training in note-taking; (

a) Ms. Reid understands that notes need to be consistent, accurate and factual; (

b) Ms. Reid understands that her notes are legal binding documents (sic); (

c) There is a quality assurance system at her company to ensure employees improve their note-taking skills; (

d) Ms. Reid understands that notes are important because she responds to a number of calls and she can “only remember so many things”; (

e) Notes are used for patient care and are reviewed by nurses and doctors to understand the type of care she gave to a patient; (

f) Ms. Reid has a standard note-taking practice that involves a chart format; (

g) Notes are taken electronically and there are several mandatory fields that must be completed; (

h) Ms. Reid is of the view that it is important to record what a patient says in order to show the patient’s mental health. She only documents what a patient says if it is pertinent to his or her care medically; (

i) As the primary practitioners, Ms. Reid would have been the only person making additions to the report, but her partner

would potentially have reviewed it before it was finalized; and (

j) Ms. Reid writes her notes right after the patient care occurs so that the events are fresh in her memory. This occurs before she goes on another call. [ 73 ] Defence counsel cross-examined Ms. Reid on a statement she provided to police in April 2019, almost two years after the event in question. At the time Ms. Reid provided this statement, she did not have access to the Patient Care Report. Defence counsel asserted that in the police statement, Ms. Reid did not refer to statements made by others and that this was because she did not specifically recall what was said. Ms. Reid agreed.

The exchange then continued as follows: Q: But I also note that you don’t mention that you did remember hearing anything at the time, right? This isn’t a situation where you’re saying, something was said, but I don’t want to misquote it? You’re saying, I don’t remember specifically said (sic); is that fair? A: I’m not sure I understand. So I would have remembered some statements, but I’m trying to make sure that I don’t misspeak or misquote the patient.

So I would try and make note of that in my comments, and depending on my note-taking, like you say, over time, I would have referenced it in my – as to the patient says or, you know, patients states X, Y, Z or I would have quotated (sic) it depending on the – Q: Right. And I’m not accusing you of anything. What I’m saying is that I believe that from reading this, you’re saying, I don’t have a lot of specific memory about what’s happening here, but that’s why I take notes, rights? A: Correct. Q: To help me out if I do have memory issues, rights? A: Right.

Q: So what I’m trying to say is that would you agree with me that you don’t actually have a very good vivid specific

summary of this, but you do have notes that are, for your purposes, supposed to be reliable for this purpose for remembering what happened? A: Yes. That’s why we make good notes. [ 74 ] Defence counsel then went on to question Ms. Reid on the specific entries in her report related to the comments made by Mr. Black. He noted that some of the statements attributed to Mr. Black in Ms. Reid’s report were in quotations while others were not. For example, the statement, “stop asking me questions” was in quotations. Ms. Reid agreed that this was an accurate recording of what Mr.

Black said. [ 75 ] However, other statements were recorded in the third person and were not in quotations. For example, Ms. Reid noted that the reference to Mr. Black saying he drank six beers was not in quotations. She also wrote, “states was wearing seatbelt.” Ms. Reid acknowledged not having recorded a direct quote of Mr. Black’s statement, but explained it is an acceptable practice to record the patient’s comments in this way. [ 76 ] Defence counsel asserted that because these matters were not directly quoted, there was the possibility that it was not what Mr. Black said. Ms. Reid responded as follows: No.

I don’t document things unless that’s what I’ve been told. So I make sure that things are in here accurately or it doesn’t get written down. So if I’m unsure or unclear what they said, I would either leave it out or document it in a different way. [ 77 ] Ms. Reid was unable to recall the exact time of Mr. Black’s comments, but testified that they occurred during transport from the Webb residence to the hospital. When Defence counsel asserted that Ms. Reid did not actually hear Mr. Black say anything about travelling at 240km/hr or crawling out of the vehicle, Ms.

Reid responded that she would not have documented it unless Mr. Black told her that. [ 78 ] Ms. Reid agreed that her testimony was heavily reliant on her notes. When Defence counsel asserted that her memory of the event was minimal, she said: “I don’t know how accurate that is because we have our notes to reference before we come to court as well, right. So I think that’s unfair to question my memory.” [ 79 ] Ms. Reid’s testimony contains elements of both past recollection recorded as well as present recollection revived. For example, Ms.

Reid’s use of her notes to establish times and addresses is an example of past recollection recorded. It is evident that Ms. Reid did not have a specific memory of the exact time she arrived at the Webb residence or the Webb’s address. [ 80 ] That being said, it is clear that Ms. Reid had a memory of the call. She testified at length regarding the events without referring to her notes. Similarly, she provided testimony on much of Mr. Black’s statements without any reference to her notes. Although she did refer to her notes to ensure accuracy, I find that her evidence on Mr.

Black’s statement regarding seatbelts was an example of present memory revived. I find that she recalled his description of being upside down and having to undo his seatbelt. She used her notes on this point to ensure her testimony was as accurate as possible. [ 81 ] Even if I am wrong on this point, a sufficient basis was laid for past recollection recalled. Ms. Reid’s notes were recorded in the electronic Patient Care Report. This Report was prepared shortly after the patient’s care was turned over to hospital authorities.

Further, she testified that her notes are made as soon as possible after the patient care ends so that her recording of events is accurate. Ms. Reid also asserted repeatedly that her notes represent an accurate record of what occurred. She was cross-examined extensively on this point, asserting that she would not have attributed a statement to Mr. Black if he did not say it. Finally, neither of the parties alleged that the record relied on by Ms. Reid was not the record she made at the time.

Although the Patient Care Report itself was not introduced as an exhibit, I am satisfied that the salient points from the document became evidence through her testimony. [ 82 ] Defence counsel argues Ms. Reid’s notes could have been affected by other conversations that occurred in the ambulance during transport. In particular, he argues that the statements regarding seatbelts could have come from Cst. Greenlagh when he spoke on the phone with Cpl Dawson. I reject this argument. [ 83 ] Although Cst. Greenlagh denied speaking to Cpl Dawson during transport, Cpl Dawson’s evidence was to the contrary. [ 84 ] Cst.

Greenlagh testified that he spoke to Cpl Dawson twice: once prior to getting into the ambulance and once after they arrived at the hospital. Cst. Greenlagh explained that the first conversation was about the need for an accident reconstructionist, whether there were other people in the vehicle, and Cpl Dawson’s suspicion that Mr. Black was the driver. During the second conversation, after the ambulance arrived at the hospital, Cst. Greenlagh and Cpl Dawson discussed Mr. Black’s level of consciousness, concerns about getting a waiver to take Mr.

Black’s blood, and seatbelts. [ 85 ] Cpl Dawson testified that he spoke to Cst. Greenlagh at 0208 and Cst. Greenlagh called him from the ambulance. According to Cpl Dawson, he told Cst. Greenlagh to treat Mr. Black as if he was the driver and to make sure Mr. Black was aware of the police caution. He testified that he told Cst. Greenlagh one of the seatbelts was unbuckled. [ 86 ] Cst. Greenlagh testified that he gave Mr. Black the police caution within 5 minutes of being in the ambulance. He did this in response to EMS questions about whether Mr. Black had been drinking.

He also testified that his conversation with Cpl Dawson about seatbelts occurred once he was at the hospital, after 0326. [ 87 ] It is difficult to reconcile these two versions of events. It is certainly possible Cst. Greenlagh spoke to Cpl Dawson while in the ambulance. Although Cst. Greenlagh asserted that his notes were an accurate recording of what occurred, I find that it is likely he spoke to Cpl Dawson upon hearing that Mr. Black had been drinking. Cst.

Greenlagh was a relatively inexperienced officer at the time, and it is likely he sought advice regarding the police caution upon hearing the inculpatory statements of Mr. Black. [ 88 ] That being said, I do not find that this conversation tainted or affected Ms. Reid’s notes. Ms. Reid, testified that she did not recall the name of the officer who rode in the ambulance with the patient. She also did not recall whether the constable made any comments in response to what Mr. Black was saying. Her evidence shows she had very little interest in the RCMP officer that rode in the ambulance.

Her focus was on her patient. [ 89 ] Further, Ms. Reid’s notes indicate that the patient said he undid his seatbelt when he was upside down. She underwent fairly aggressive cross-examination on this point and was unwavering in her evidence that this statement was made by Mr. Black. I find that Mr. Black told Ms. Reid that he undid his seatbelt while upside down in the vehicle. Who was Driving the Vehicle? [ 90 ] Having considered the context in which Mr. Black’s statements were made, I will now turn to the physical evidence relied on by the Crown to establish that Mr. Black was the driver.

This consists of the evidence as to whether or not Ms. Jabs was ejected from the vehicle, the physical state of the driver side seatbelt, the placement of Mr. Black’s boots in the vehicle, and Mr. Black’s injuries. [ 91 ] I will make findings in regards to various aspects of the physical evidence. Once this review is complete, I will consider the physical evidence in the context of Mr. Black’s statements and make a finding as to whether or not the Crown has proven beyond a reasonable doubt that Mr. Black was the driver of the vehicle.

a) Was Ms. Jabs ejected from the vehicle? [ 92 ] Cpl Red Iron was called as an expert in the area of collision investigation and reconstruction, including collision speed calculations and

interpretation of road marks, skids and yaw marks, opinion evidence with respect to direction in collisions, evidence with respect to steering inputs and braking, and opinion evidence with respect to passenger restraint systems (i.e. seatbelts). Prior to his retirement in 2020, Cpl Red Iron had approximately 12 years of experience as an accident reconstructionist and had attended at over 1000 collisions. [ 93 ] In Cpl Red Iron’s opinion, Ms. Jabs was ejected from the sunroof of the vehicle. He testified that the vehicle became airborne after it left the road.

It hit the ground four separate times before coming to rest in a group of trees, on the other side of a farmer’s fence. There was no damage to the fence as the vehicle tumbled over it. [ 94 ] The impact points in the grass followed the route of the vehicle to its final resting place. From the third impact point, there were three objects in a line, following a separate trajectory. These objects were the sunroof and glass, the front passenger side glass, and the deceased, Ms. Jabs.

Cpl Red Iron explained that the grass was packed down starting at the sunroof, along the same trajectory as these three objects, showing the deceased was ejected from the vehicle, hit the grass, slid, and came to a final rest. [ 95 ] A piece of weather stripping from the sunroof was wrapped around Ms. Jabs body. This further supported Cpl Red Iron’s opinion that Ms. Jabs was ejected from the sunroof. He estimated that she was approximately 20-30 m from the vehicle. The vehicle was on the other side of a barbed wire fence.

[ 96 ] On cross-examination, Defence counsel suggested that Ms. Jabs could have been moved after the accident. Based on the depressions in the grass, Cpl Red Iron did not agree that she was moved. He reluctantly acknowledged that she could have been rolled over, but asserted her body had not been moved from its final resting place after the collision. [ 97 ] I accept the opinion of Cpl Red Iron and find that Ms. Jabs was ejected from the sunroof of the vehicle after the vehicle hit the ground for the third time.

b) Can Mr. Black’s statement that he dragged Ms. Jabs from the vehicle be used to infer consciousness of guilt [ 98 ] The Crown argues the statement Mr. Black made that he dragged Ms. Jabs from the vehicle, should be used to infer guilt. The Crown’s position is that Mr. Black had to come up with this statement in order to explain how Ms. Jabs could have ended up so far away from the vehicle. The Crown argues Mr.

Black’s evidence on this point contradicts the known facts that establish she was ejected from the vehicle. [ 99 ] In order to prove an accused’s statement is a fabrication that can then be used as part of the Crown’s case as evidence the accused lied to conceal his or her guilt, “the Crown must adduce evidence of that fabrication, independent of the evidence that contradicts or discredits the exculpatory statement”: R v Al-Enzi , 2021 ONCA 81 at para 39 .

Further, “[i]ndependent, in this sense, means that the evidence of concoction is separate from the evidence of guilt ”: R v Ching , 2019 ONCA 619 at para 47 . [ 100 ] To accept the argument of the Crown, I must rely on evidence that is independent from the evidence that the Crown proposes I use to find that Ms. Jabs was ejected from the vehicle through the sunroof, rather than pulled from the vehicle. I am unable to do this based on the evidence. Simply put, the evidence that Ms. Jabs was ejected from the sunroof is the same as the evidence purported to be used to conclude Mr.

Black concocted this version of events. I am unable to make the finding being sought by the Crown. [ 101 ] Further, I do not doubt that Mr. Black came into contact with Ms. Jabs before proceeding to the Webb residence. He knew Ms. Jabs was dead. He could only have known this if he came upon her body. Although I do not believe that he dragged her any distance, due both to his injuries as well as the patterns in the grass, he might well have rolled her over. Further, it is possible he attempted some form of CPR. This would explain the blood that was smeared on her face.

Given this uncertainty, it is unsafe, and contrary to the legal requirements for me to conclude his statement that he dragged Ms. Jabs is a concoction that evinces guilt.

c) Was the driver side seatbelt properly worn at the time of the accident? [ 102 ] As part of his investigation, Cpl Red Iron examined the vehicle’s seatbelts. The passenger side seatbelt was fully retracted against the B pillar. There is no dispute that this seatbelt was not worn during the accident. [ 103 ] The driver side seatbelt was loose and dangling. The Crown’s position is that the evidence is consistent with Mr. Black having been in the driver seat and that he wore the seatbelt properly during the accident. The Defence argues that Ms.

Jabs might have been loosely wearing the seatbelt and because it was loose, she might have nonetheless been ejected from the vehicle. [ 104 ] In order to assess these two conflicting hypotheses, it is necessary to understand how seatbelts work. Cpl Red Iron testified that a seatbelt is attached to the vehicle at three points by steel bolts: above the shoulder on the B pillar, at the bottom of the B pillar, and at the floor in the location of the latch. The belt in this vehicle was equipped with a pretensioner. A pretensioner is a device consisting of balls and ratchets that is controlled by the airbag module.

It tightens the seatbelt into the retractor milliseconds before a crash and then it locks. [ 105 ] As part of his examination, Cpl Red Iron looked at the seatbelts for signs of duress. He testified that in a collision, as the nylon belt slides through the plastic buckle, it will generate heat. This will leave marks or lines on the plastic buckle. There will also be a sheen on the nylon belt. [ 106 ] The driver side seatbelt was loose and dangling. Cpl Red Iron testified that the seatbelt would not retract. It was locked in the extended position because the pretensioner had fired.

The seatbelt nylon was twisted in the buckle. The nylon had a sheen and the buckle had markings where the belt had passed through it. [ 107 ] The driver side seatbelt was made an exhibit in court. Cpl Red Iron showed the Court the sheen on the nylon where it had passed through the buckle as well as a ripple across the nylon at the shoulder position. The buckle had ridges where the nylon had passed through it, melting the plastic. None of these markings were on the unused passenger seatbelt. In Cpl Red Iron’s opinion, the driver was wearing the seatbelt at the time of the collision.

Cpl Red Iron held the seatbelt against his body. The ripple effect was at his shoulder. The seatbelt was long enough to have been worn by a person of Cpl Red Iron’s size. Cpl Red Iron testified that he’s 6 foot 2, 285 pounds. During his testimony, Mr. Webb estimated Mr. Black to be 6 foot 2 or 6 foot 3 and 240 lbs. [ 108 ] There is nothing in the evidence to suggest that the seatbelt was locked in an extended position prior to the accident.

The presence of melted ridges on the buckle, as well as rippling at the shoulder, indicates that the twist in the belt did not prevent the seatbelt from retracting as expected during the accident. [ 109 ] The Defence theory is that the seatbelt might have been locked in an extended position prior to the accident and that if Ms. Jabs was wearing the seatbelt, it might not have held her in the vehicle because of the slack in the belt. Defence counsel asserts that Cpl Red Iron’s evidence is that the twist caused the belt to lock up.

Defence counsel’s theory is that this caused there to be slack in the belt while it was being worn.

[ 110 ] I do not agree with Defence counsel’s

interpretation of the evidence. In particular, I do not agree that Cpl Red Iron’s evidence was that the twist caused the belt to lock up. Cpl Red Iron’s evidence was not that the seatbelt was locked prior to the accident. Rather, this was a hypothetical put to him by Defence counsel to explore what would have happened if a smaller person was wearing a locked and loose seatbelt at the time of the accident. Cpl Red Iron agreed that a loose seat belt might not completely restrain the occupant, but that the occupant would “have had a fighting chance.”

d) The boots [ 111 ] The accused’s size 14 work boots were found wedged in the driver side wheel well. The right boot was over the gas pedal and the left boot was over the brake pedal. They were wedged against the knee bolster, below the steering wheel and were positioned with the soles on the pedals and the openings toward the steering wheel. The fronts of the boots were facing toward the front of the vehicle and the heels of the boots were toward the seat. [ 112 ] The Crown’s position is that Mr.

Black was wearing the boots and their placement on the driver side, wedged on the gas and brake pedals, is evidence that Mr. Black was the driver. The Defence urges the Court to reject the boots as evidence that Mr. Black was driving. Defence counsel suggests Ms. Jabs might have been wearing the boots. [ 113 ] Ms. Jabs was barefoot and, other than Mr. Black’s boots, no additional footwear was found at the scene. When Mr. Black arrived at the Webb’s door, he was wearing socks, without footwear. According to the Defence, it is equally likely that Ms. Jabs was wearing the boots.

In response, the Crown argues that it would be difficult for a person with size 8 feet to drive a manual transmission vehicle while wearing a men’s size 14 boot. [ 114 ] It is unnecessary for me to consider the mechanics of driving a manual transmission vehicle in oversized footwear in order to resolve this issue. [ 115 ] The evidence is overwhelming that Ms. Jabs was ejected from the sunroof of the vehicle. This occurred after the third impact the vehicle made with the ground. The vehicle continued toward the fence and hit the ground once more before it came to a rest on the other side of the fence.

That is, it was airborne twice after Ms. Jabs was no longer in the vehicle. [ 116 ] For the Defence theory to be accepted, I must find that despite being airborne twice, the boots remained lodged between the pedals and the knee bolster, or alternatively, that the boots were thrown around the vehicle and ultimately became trapped between the pedals and the knee bolster. Cpl Red Iron testified that when the vehicle was righted by the tow company, the boots were dislodged and came out.

The theory put forth by the Defence is not a reasonable inference based on the evidence. [ 117 ] The Defence posits that an occupant could not have removed their feet from the boots while they were jammed under the knee board. The boots were photographed by both Cpl Dawson and Cpl Red Iron. In the photograph taken by Cpl Red Iron (Exhibit 4, pp 62- 64), the opening of the boots appears to be obstructed by the steering wheel or the knee bolster. However, in the photographs taken by Cpl Dawson (Exhibit 3, p 6), there is nothing obstructing the opening of the boots.

The difference appears to be the result of the camera angle used by each photographer.

e) Could the firefighters have wedged the boots onto the pedals and unbuckled the seatbelt? [ 118 ] The Defence argues that the boots might have been placed over the pedals by a member of the fire department when the vehicle was accessed to disable the fuel pump. The Defence also argues that when the firefighters accessed the cabin of the vehicle to disable the fuel pump, they unbuckled the driver side seatbelt. [ 119 ] Cpl Dawson testified that firefighters disabled the fuel pump of the vehicle.

He did not know the exact time that this occurred, but his notes indicate that he spoke to the firefighters at 1:00 am when they arrived on the scene. He did not know how they disabled the fuel pump or whether the firefighters would have accessed an electrical panel in the cabin of the vehicle. No firefighter was called as a witness at trial. [ 120 ] Cpl Dawson began taking photographs of the vehicle at 1:05 am or 1:10 am, i.e., after his discussion with the firefighters. His photographs show the boots lodged between the pedals and the knee bolster and they show that the driver side seatbelt is undone.

Four of Cpl Dawson’s photos also show an illuminated rear light as well as an illuminated side light on the passenger side of the vehicle. [ 121 ] Cpl Red Iron arrived on the scene at 2:15 am and remained until 5:30 am. He took photographs during this period while it was still dark. He returned later in the morning at 7:30 am to take additional photographs during the daylight. At least six of Cpl Red Iron’s photos show the passenger side of the vehicle.

The lights that were illuminated in Cpl Dawson’s photos are not illuminated in Cpl Red Iron’s photos. [ 122 ] Cpl Red Iron was asked to explain why the lights might have been on after the accident. He explained that the lights would be on if the light switch was on before the accident and the battery was still connected. It also implies that the ignition was still on. Cpl Red Iron testified that he could not say for certain whether the fuse box for this vehicle was within the cabin of the vehicle. He agreed that it could have been in the glove box on the passenger side, but also that it could be anywhere.

He agreed that the fuel pump could be disabled by removing a fuse. [ 123 ] Although Cpl Red Iron agreed the fuel system could be disabled by removing a fuse, he testified that the primary way is to cut the negative cable to the battery. He testified that cutting the battery cable instantly disables all of the electrical components. The light would not be on if the negative cable was cut. [ 124 ] The vehicle lights were on when Cpl Dawson took his photographs and off when Cpl Red Iron took his. The evidence is

consistent with the firefighters having disabled the fuel pump after Cpl Dawson took his photographs.

It necessarily follows that the firefighters did not manipulate the boots or the seatbelt. [ 125 ] However, even if the firefighters did access the vehicle before Cpl Dawson took his photographs, the Defence theory requires me to accept that a firefighter entered the vehicle to disable the fuel pump and/or electrical panel of the vehicle, unbuckled the driver side seatbelt, found a pair of boots, felt they were in his or her way, and intentionally lodged them between the pedals and the knee bolster. [ 126 ] Although there is no burden on the accused to call evidence, the theories advanced by the Defence could have been supported by evidence.

For example, the firefighters at the scene could have been called. This was not done. The Defence theories are not reasonable inferences based on the evidence. I find that Mr. Black’s boots and the seatbelt were not disturbed by any of the investigators or firefighters on the scene.

f) The blood evidence [ 127 ] Blood was collected from the driver’s side door lower airbag. The DNA typing profile obtained from this location was of mixed origin, which is consistent with it having come from two individuals, one of whom was male. Due to the weakness of some components, the analyst was unable to make a meaningful comparison of those samples. [ 128 ] Defence counsel urges the Court to accept that the unknown sample might have come from Ms. Jabs. This is evidence that Ms. Jabs was the driver. I reject this argument and place no weight on the blood evidence.

Cpl Red Iron testified that in a collision such as this, blood from each occupant might find its way to the other side of the vehicle. He said, “it would be a blender inside the vehicle.”

g) Mr. Black’s injuries [ 129 ] The Crown argues that Mr. Black’s injuries were primarily on the left side of his body and that this is consistent with him having been the driver of the vehicle. The Crown also argues the fact that Mr. Black survived the accident, while Ms. Jabs did not, is evidence that he was the belted driver. [ 130 ] The evidence establishes that Mr. Black’s injuries were primarily on the left side of his body. Mrs. Webb testified that Mr. Black was favouring his left arm. [ 131 ] Dr. Chin was the physician in charge of Mr.

Black’s care when he arrived at the University of Alberta emergency department. Dr. Chin identified the following injuries on Mr. Black: abrasions to the left chest and hip, swelling and bruising to the left arm, tenderness to the spine, and bruising around the eyes. [ 132 ] Dr. Mador is a surgeon that took over Mr. Black’s care and admitted him to hospital. He described Mr. Black’s injuries as follows: injuries to the vertebrae and c spine, minor injuries to the thoracic spine, a single rib fracture on the left side, a laceration to the left writs, and swelling to the left arm with no underlying fracture.

h) Findings of fact arising out of the physical evidence [ 133 ] My findings of fact are as follows: (

i) Ms. Jabs was ejected from the sunroof of the vehicle. After ejecting Ms. Jabs, the vehicle hit the ground one further time before it came to rest on the other side of a fence. The vehicle was airborne two more times after Ms. Jabs was no longer in the vehicle. (ii) The fuel pump and electrical system of the vehicle were not disabled until after Cpl Dawson took his photos. (iii) Mr. Black’s size 14 boots were wedged on the gas and brake pedals. They were not put there by the firefighters. (iv) The openings of the boots were unobstructed and facing in the direction consistent with them having been worn by the driver. (

v) The driver side seatbelt was worn during the crash. (vi) The driver side seatbelt was undone following the crash. The seatbelt was not undone by firefighters. (vii) The passenger side seatbelt was not worn during the crash. (viii) When the twist in the seatbelt is considered in the context of the burn marks, I find that the seatbelt was worn properly by the driver (i.e. without any slack) and retracted in the way that would be expected. (ix) The burn marks on the driver side seatbelt indicate that a larger person was wearing the seatbelt when the accident occurred. (

x) Mr. Black suffered injuries primarily on the left side of his body, but survived the crash and was able to walk away from it.

i) Do Mr. Black’s statements raise a reasonable doubt regarding whether or not he was the driver? [ 134 ] Mr. Black insisted and repeatedly said that he was not the driver and that he should not have let Ms. Jabs drive because she did not know how to drive a manual transmission vehicle. He also said that he dragged Ms. Jabs from the vehicle. In the context of all of the

evidence, I do not believe the accused. [ 135 ] Although I do not believe the accused, I must consider whether it leaves me with a reasonable doubt about his guilt. I have considered all of the evidence presented by the Crown, as well as the theories advanced by the Defence. The evidence of the accused does not leave me with a reasonable doubt about his guilt. The evidence of Mr. Black, as well as the theories advanced on his behalf by counsel, are inconsistent with the physical evidence. [ 136 ] Even though Mr.

Black’s evidence does not leave me with a reasonable doubt, I must consider whether, on the basis of the evidence that I accept, the Crown has proven beyond a reasonable doubt that Mr. Black was the driver. [ 137 ] When all of the elements of the physical evidence are considered together, it leads to no other rational conclusion than that Mr. Black was the driver of the vehicle. The Crown has proven beyond a reasonable doubt, on the basis of the physical evidence, that Mr.

Black was the driver of the vehicle. [ 138 ] I note in conclusion, that a rational conclusion from the evidence is that after the vehicle came to rest, Mr. Black was hanging upside down in the vehicle, held by his seatbelt. He would have undone his seatbelt and fallen upside down from his seated position, leaving his boots behind. Although it is unnecessary for me to rely on Mr. Black’s statement to this effect, recorded by Ms. Reid, I note that the statement logically flows from the physical evidence. Dangerous driving causing death [ 139 ] Mr.

Black is charged with dangerous driving causing death, contrary to section 259(4) of the Criminal Code . In 2018, this

section was repealed and replaced by

section 320.13(3) of the Criminal Code . Section 259(4) , as it was in August 2017, is the offence that applies in this case. The relevant portions of this

section are reproduced as follows: 249(1) Everyone commits an offence who operates (

a) a motor vehicle in a manner that is 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;

(4) Everyone who commits an offence under subsection (1) and thereby causes the death of any other person is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years. [ 140 ] There is no dispute that Ms. Jabs’ death was caused by the motor vehicle accident. [ 141 ] The actus reus of the offence of dangerous driving is driving “in an objectively dangerous manner” that is “objectively dangerous to the public”: R v Chung , 2020 SCC 8 at paras 1 and 5 .

Further, “[t]he focus of this inquiry must be on the risks created by the accused’s manner of driving, not the consequences, such as an accident...”: R v Roy , 2012 SCC 26 at para 34 [ Roy ]. [ 142 ] In order to determine whether Mr. Black drove in an objectively dangerous manner, I will consider the road conditions, the speed of the vehicle, and the distance that was travelled before the accident occurred.

a) The road conditions [ 143 ] Cpl Red Iron’s speed calculations assume that the road was dry; however, there is evidence to suggest that the road was wet at the time of the collision. If the road was wet at the time of the collision, the speed of the vehicle at the time of the collision was likely slower than what was estimated by Cpl Red Iron. [ 144 ] Mrs. Webb testified that the evening of August 23, 2017 was windy and rainy with some thunderstorms. She recalled being aware that STARS air ambulance was not coming because the accused was stable and because there was a concern about the weather.

She recalled calling 911 at around 12:30 am. Mrs. Webb testified that Mr. Black said the road was slippery. [ 145 ] Mr. Webb testified that the weather had been stormy before midnight, but most of it had rolled away. He recalled hearing a noise that sounded like strange thunder. He thought the noise was probably the car accident. Sometime after midnight, he could hear someone shouting outside. [ 146 ] Mr. Webb testified that he went to the scene approximately 5 minutes after he let Mr. Black into his residence. The road was still wet.

He did not recall if it was still raining, but he said that he did not get wet. [ 147 ] Cpl Dawson was dispatched to the scene of the collision at 0027. He arrived on scene at 0050. He testified that he did not make any notes about the weather, but that it was a warm, summer night. It was clear and there was no precipitation. The highway was dry. He did not recall the scene being wet, but said it was wet closer down by the fence, in the ditch. [ 148 ] I find that the road was wet at the time of the collision. The road was wet when Mr. Webb went to the scene.

The road dried completely between approximately 12:30 am and when Cpl Dawson arrived 20 minutes later. This is an important finding that affects the speed calculations completed by Cpl Red Iron.

b) Speed of the vehicle [ 149 ] Cpl Dawson told Cpl Red Iron that the road was dry at the time of the collision. Cpl Red Iron did a walkthrough of the scene

and made note of the yaw marks, the distance travelled and the impact marks. In his experience, this was a high-speed collision involving a rollover. [ 150 ] Cpl Red Iron began taking measurements 30 m beyond the onset of the yaw marks. Cpl Red Iron explained that a yaw mark occurs when the vehicle oversteers and goes into a rotation around its axis. The yaw marks give the radius of the curve that the vehicle is travelling in.

With the radius and the coefficient of friction of the road, the speed of the vehicle is obtained through the use of a mathematical formula. [ 151 ] The coefficient of friction is the friction that exists between two surfaces. Accident reconstructionists use a drag sled to obtain the coefficient of friction for a surface.

Cpl Red Iron pulled the sled over the surface of the road 10 times and obtained a coefficient of friction of 0.78. [ 152 ] Using the yaw measurements and the coefficient of friction, Cpl Red Iron calculated the speed of the vehicle to be 165 km/hr 30 meters from the onset of the tire marks. [ 153 ] Cpl Red Iron testified that the speed of the vehicle would have been higher at the start of the tire marks. However, he was unable to calculate the speed accurately at this point because the initial marks were not sharp enough.

He explained that in order to accurately take the measurements, marks with a sharp edge are required. Cpl Red Iron provided the parties with calculations at earlier points of the yaw, i.e. when the vehicle began to oversteer. Although not accurate, these calculations demonstrate that the speed of the vehicle must have been higher than 165 km/hr at the start of the yaw. [ 154 ] On cross-examination, Cpl Red Iron was asked to explain how the coefficient of friction would be impacted if the road was wet at the time of the accident.

He explained that the coefficient of friction is less for a wet road and agreed that a light shower would affect it less than a torrential thunderstorm. His measurements were based on a dry road because Cpl Dawson told him the road was dry at the time of the accident. [ 155 ] A published table containing coefficients of friction was put to Cpl Red Iron. He agreed that, on average, the coefficient of friction for a wet road could be between 0.4 to 0.6, as described in the table. He further agreed that the range for a dry road is 0.55 – 0.70.

Cpl Red Iron performed the speed calculation for a coefficient of friction of 0.4 and found that the speed of the vehicle would be 118 km/hr. [ 156 ] The hypotheticals put to Cpl Red Iron, based on the published table, must be treated with caution. First, the coefficient of friction measured by Cpl Red Iron was 0.78, higher than the published table figure for a dry road. Second, the table amounts do not provide any information regarding the degree of moisture on the road associated with these averages. [ 157 ] The amount of moisture on the road at the time of the collision is unknown. When Mr.

Webb arrived on the scene the road was wet; it was completely dry by the time Cpl Dawson arrived. In addition, the road was not so wet as to cause the vehicle to hydroplane. Had the vehicle hydroplaned, the marks left on the road would have been different. [ 158 ] Defence counsel suggested that mud or other contaminants on he road could have affected the coefficient of friction and that a heavy rain might have washed these things away before Cpl Red Iron did his calculations. First, there is nothing to suggest that there was a heavy rain.

Second, there is nothing in the evidence to suggest that the road was covered with a contaminant such as mud or oil. The photos of the road and the shoulders of the road show a clear dry road. There is no evidence that mud was washed away to the shoulders of the road. [ 159 ] With respect to the speed of 118 km/hr, Cpl Red Iron testified that “if that vehicle was travelling at that low speed, it never would have ended up where it was.

The tumble and roll on that vehicle was extensive, requiring a great amount of force to get there, and speed.” [ 160 ] Defence counsel suggests that this opinion exceeds Cpl Red Iron’s area of expertise. Cpl Red Iron was qualified in collision investigation and reconstruction. He has attended over 1000 collisions, 300 of which involved fatalities.

While he might not be able to provide an opinion on the extent of the damage a vehicle might suffer, I am satisfied that, based on his experience, particularly with speed and distance calculations, and having observed over 1000 collisions, he is able to provide an opinion that a vehicle travelling at 118 km/hr would not have skidded on the road for 86 meters, tumbled four times and travelled 153 m once it left the road. [ 161 ] Even if the vehicle was travelling at 118 km/hr at the point that the measurement was taken, this is slower than the vehicle speed at the onset of the skid.

Although I am unable to determine an exact speed of the vehicle, I accept Cpl Red Iron’s opinion that this was a high-speed collision and the vehicle was not travelling as slow as 118 km/hr. [ 162 ] Cpl Red Iron’s evidence is not the only evidence the Court has regarding the speed of the vehicle. Mrs. Webb, Mr. Webb, Cst. Greenlagh, and Ms. Reid, all testified that Mr. Black said the vehicle was travelling at 240 km/hr. According to photographs of the vehicle, the highest speed showing on the vehicle’s speedometer is 240 km/hr. [ 163 ] I accept Mr.

Black’s statement that the vehicle travelled at 240 km/hr at some point between Ms. Jab’s residence and the location where the accident occurred. Much of what Mr. Black said that night is corroborated by other evidence. His kids were home alone, the vehicle was travelling in the direction of Tomahawk, and, as will be described, his blood alcohol level was consistent with him having consumed alcohol that night. [ 164 ] In addition, Mr. Black told Ms. Reid that he was hanging upside down when the vehicle came to rest and he had to undo his seatbelt. This statement is also consistent with the physical evidence.

Further, Ms. Reid testified that at some point during the trip to the hospital, Mr. Black refused to answer any more questions. Presumably, this occurred after he made the inculpatory statement about the seatbelt and realized he had said too much. [ 165 ] The only statements Mr. Black made that are inconsistent with the physical evidence are his assertion that he was not driving

and his statement that he dragged Ms. Jabs from the vehicle. Mr. Black had a motive to lie on these points. However, that did not prevent him from saying other things that were inculpatory. For example, he repeatedly said that he drank 6 beers. On its own, this statement is not inculpatory, but when combined with the fact that he was driving, it is. [ 166 ] I find that Mr. Black’s statement that the vehicle was travelling at 240 km/hr is true. He repeated this statement to each person he interacted with.

Further, it is consistent with the physical evidence and the opinion of Cpl Red Iron that this was a high-speed crash. [ 167 ] The Court is unable to determine whether the vehicle was travelling at 240 km/hr at the precise moment of the collision. However, the Court is not required to establish the exact speed of the vehicle at the time of the collision. In order to establish the actus reus of the offence, I must find that Mr. Black was driving in an objectively dangerous manner. I find that he was. [ 168 ] First, the vehicle reached a speed of 240 km/hr over a relatively short distance. Mr.

Black made statements that he was travelling from Ms. Jabs’ residence, where the kids were, to a liquor store in Tomahawk. Exhibits 7 and 8 are road maps of the area. They show there is a distance of 3.4 kms between Ms. Jabs’ residence and the Webb residence. This establishes the vehicle did not travel very far before the accident occurred. If the vehicle was travelling at the speed limit, it would take just over 3 minutes to travel a distance of 3.4 km. This time is reduced as the speed of the vehicle increases. [ 169 ] Reaching a speed of 240 km/hr over a short distance and time leads me to conclude that Mr.

Black was driving in an objectively dangerous manner. The following additional factors support this conclusion: (

a) This was a single lane highway with vehicles travelling in opposing directions; (

b) The speed limit for the road was 100 km/hr; (

c) The road was wet and slippery; (

d) The actual speed of the vehicle exceeded 118 km/hr at the time of the collision; and (

e) This was a high-speed collision. [ 170 ] Having found that Mr. Black’s driving was objectively dangerous, I must consider the mens rea of the offence. The mens rea for the offence of dangerous driving is discussed in Roy at para 36 : 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. [ 171 ] In the course of this analysis, I will consider the relevance of Mr. Black’s voluntary consumption of alcohol prior to the motor vehicle collision as it relates to establishing the mens rea of the offence of dangerous driving.

c) The effect of alcohol consumption [ 172 ] Mr. Black consumed alcohol prior to driving. No alcohol containers were found at the scene of the accident. The Webbs both testified that they could smell alcohol on Mr. Black. Ms. Reid also noted the smell of ethanol. Mr. Black told the Webbs and Ms. Reid that he had drunk 6 beers. [ 173 ] A sample of Mr. Black’s blood was taken at 3:40 am and was determined to contain 42mg/100mL of blood alcohol. [ 174 ] Alcohol consumption can be relevant to whether dangerous driving is established. Evidence of “reckless or wilfully blind conduct [is] relevant.

It is for this purpose that evidence of an accused’s voluntary consumption of alcohol may be relevant in establishing the mens rea of the offence of dangerous driving”: R v Settle , 2010 BCCA 426 at para 48 [ Seattle ]. [ 175 ] In this case, the evidence does not prove beyond a reasonable doubt that Mr. Black was impaired at the time of the accident. Dr.

Tracy Cherlitt was qualified to give expert opinion with respect to the absorption, distribution and elimination of alcohol in the human body as well as with respect to the effects of alcohol on the human body, the effect of alcohol on the ability to operate a motor vehicle, and calculations of blood alcohol concentrations. [ 176 ] Dr. Cherlitt performed calculations of Mr.

Black’s blood alcohol level at various times using the following assumed facts: an elimination rate of 10-20 mg% per hour, that no alcohol was consumed after the time of interest, that peak blood alcohol concentration was achieved at or prior to the time of interest. The following table contains the results of Dr. Cherlitt’s calculations: Time of Interest Blood Alcohol Level 12:30 am 74 – 105 mg% Midnight 79 – 115 mg% 11:30 pm 84 – 125 mg% 11:00 pm 89 – 135 mg% 10:30 pm 94 – 145 mg% [ 177 ] The results obtained by Dr. Cherlitt are highly dependent on the three assumptions listed above.

In particular, the Court has no evidence as to when the peak blood alcohol concentration was achieved. Normally, the peak is expected to be achieved within 30

minutes of conclusion of consumption, assuming the alcohol is being consumed in a normal manner. If alcohol is being consumed in a heavy manner, the time to peak will be longer and may be as high as one hour after drinking has concluded. If the peak is not achieved at the time of interest, the estimate will be too high. A change in this assumption can significantly affect the results. [ 178 ] Dr. Cherlitt testified that in her opinion, all individuals, regardless of toler

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