R. v. Sprayson, 2022 ONCJ 610

ONTARIO COURT OF JUSTICE CITATION: R. v. Sprayson , 2022 ONCJ 610 DATE: 2022 12 21 COURT FILE No.: 192307 BETWEEN: HIS MAJESTY THE KING (Crown) — AND — MADISON SPRAYSON (Defendant) JUDGEMENT Before Justice of the Peace L. Bourgon Heard on April 4, 6, 7, 21, June 22, 23, and October 7, 2022 Reasons for Judgement released on December 21, 2022 G. Black................................................................................................ Counsel for the Crown A. Touchette.............................................................................. Counsel for the Defendant JUSTICE OF THE PEACE L.

BOURGON: INTRODUCTION 1 . On a clear and dry summer’s evening on July 26, 2019, Madison Sprayson (the Defendant) was driving home after running errands with her boyfriend, Jonathan Walker Clements and their friend Riley Nicholas Wamboldt. Mr. Walker Clements was seated in the front passenger seat while Mr. Wamboldt was seated behind the Defendant. While driving in the eastbound lanes of Highway 407 East in Pickering near the Kinsale Road overpass, the Defendant lost control of her car resulting in a roll over accident into the oncoming westbound lanes of Highway 407 East.

The Defendant’s car collided with the car operated by Keith Gruben and his wife Mary Lou Gruben. Tragically, Mr. Wamboldt was killed in the collision. Mr. and Mrs. Gruben suffered serious injuries. 2 . The Defendant is charged with careless driving causing death and two counts of careless driving causing bodily harm contrary to s.130(3) of the Highway Traffic Act (HTA).

3 . The Defendant plead not guilty to all three charges. ISSUE 4 . The identity of the Defendant as being the operator of a motor vehicle, on a highway, on the date, time and location of the facts giving rise to this matter is not disputed. 5 . The only issue to be decided is whether the Defendant drove her motor vehicle carelessly without due care and attention or without reasonable consideration for other persons using the highway resulting in the death and bodily harm of other persons. ONUS 6 . The onus is on the prosecution to prove the charges against the Defendant beyond a reasonable doubt.

THE EVIDENCE Crown’s Evidence 7 . The Crown called a total of 14 witnesses (5 civilian witnesses and 9 police witnesses). Witness 1: Peter Armoogam – MTO Employee 8 . The witness has been a Ministry of Transportation of Ontario (“MTO”) employee for the past 35 years. Since 1999 he has held the position of traffic management supervisor. 9 . Through the witness, the court heard that the MTO has 325 cameras on 400 series highways in Ontario. The cameras are used to confirm incidents and coordinate with emergency agencies. The cameras are typically spaced 1 km apart as a benchmark.

However, this is an approximate distance which can vary depending on sight lines. The cameras can be panned and tilted by operators. Video recordings are made and securely stored as part of the ordinary course of business. The recordings are retained for a period of 30 days and then recorded over unless a freedom of information request is made. The date and time stamps on the videos cannot be changed by MTO staff. 10 . The witness testified that cameras were in existence and operating in July 2019 on the stretch of Highway 407 East where the accident occurred. 11 . There is a maintenance contract for the cameras.

However, the witness could not say when the camera timestamps were last checked for accuracy. 12 . The Crown tendered a video recording taken by the MTO CCTV cameras which captures part of the accident including the Defendant’s motor vehicle leaving the eastbound Highway 407 East and colliding into an oncoming westbound motor vehicle. Witness 2: Officer Brandyn Johnson - Investigator

13 . The witness testified that he was not present at the accident scene. Rather, he became involved in the investigation afterwards through statements he took from the Defendant and her front passenger Jonathan Walker Clements. 14 . The officer testified that he took a statement from Mr. Walker Clements at the hospital on the evening of the collision around 11:21 pm. The officer was able to identify Mr. Walker Clements through his Ontario health card. He read the witness the caution found on his OPP issued card. Mr. Walker Clements confirmed that he understood the caution. 15 . Mr.

Walker Clements stated that he was a front seat passenger in the Defendant’s car and that the Defendant was driving at the time of the accident. When asked by the officer what happened, Mr. Walker Clements stated that it was blurry and that he wanted to rest. He then indicated to the officer that the vehicle went to the right and then to the left and then started skidding. At no point during the interview did the witness suggest that he was responsible for the collision by interfering with the Defendant or by grabbing the steering wheel. 16 . The officer interacted briefly with the Defendant at the hospital.

He confirmed her identity through an identity document. A few minutes into the interview, the Defendant became ill and was taken for x-rays. Later in the early morning hours, around 1:14 am, the officer spoke with the Defendant again. She provided contact information for herself and her father. She advised that she was aware of the deceased party in her vehicle. The officer did not question the Defendant about the potential cause of the collision. Witness 3: Keith Gruben – Injured Driver of Oncoming Vehicle 17 .

The witness testified that on July 26, 2019, he was travelling westbound with his wife on Highway 407 around the Salem Road underpass. Based on his recollection, it was after dusk sometime after 8:30 pm. He and his wife were returning home to Markham from Whitby. The conditions were clear. There was no rain and the view was unobstructed. The witness estimated he was driving 105 km/hour with his cruise control activated. 18 . He believed he was driving in the right hand lane as he went under the underpass. The collision happened quickly.

A white vehicle came across the median airborne and collided with his vehicle bringing him to a dead stop. His car’s airbags deployed and the vehicle was destroyed up to the firewall. 19 . Mr. Gruben was taken to Markham Stoufville Hospital and later to St. Michael’s Hospital’s acute care centre. He suffered a cracked sternum and 3 or 4 cracked ribs causing him difficulty breathing. He was diagnosed with a collapsed lung. He also suffered muscular aches and pains. He was kept in hospital for about 6 days. 20 . According to the witness, his wife Mary Lou Gruben suffered a neck fracture.

As a result of her injuries she was required to wear a neck collar for over 2 months. She also had a plate and screws inserted in her ankle. She was in hospital until about September 18, 2019. Ms. Gruben has recovered substantially from her injuries. However, she continues to see a psychiatrist on an ongoing basis and has trouble with her hip. Witness 4: Glenn Mizen – Witness Driving Behind the Defendant 21 . The witness testified that he was driving eastbound on Highway 407 on July 26, 2019. He was accompanied by his wife, Tammy Noseworthy, in the front passenger seat.

Their son and his friend were seated in the back. It was late afternoon and conditions were clear and dry. The traffic was moderate and there were no obstructions observed on the highway. 22 . As he drove eastbound with his cruise control set at 110 km/hour, he noticed a vehicle veer sharply to the left over the median and hit the shoulder of the westbound lane and began to roll, eventually making contact with an oncoming car. The witness estimates that he made his observation at a distance of about 500 meters from the Defendant’s motor vehicle.

He did not observe any other concerning driving behaviours from other motorists or the Defendant’s vehicle prior to the accident. Witness 5: Tammy Noseworthy – Front Passenger in Glenn Mizen’s (Witness 4) Car

23 . The witness testified that she was seated in the front passenger of her husband’s (Glenn Mizen) car. She was chatting with her son and his friend seated in the backseat about their day. Suddenly, the boys pointed and said something happened ahead of them. She did not notice anything unusual until the boys said: “look at that”. She saw a car that was out of control. She believes her husband was in the centre lane at the time she made the observation. The car was already hitting the grassy median and dirt by the time she made her observation.

She testified that she is terrible with measurements and could not say how far they were from the Defendant’s motor vehicle when she made her observation. 24 . Ms. Noseworthy got her husband to pull over so that she could go to the accident scene to provide assistance. She proceeded directly to the Defendant’s motor vehicle. She saw that the driver was in distress. It was apparent that there had been a fatality in the back seat of the Defendant’s car. In addition there was a male in the front passenger seat. This male appeared calmer than the driver.

The male passenger confirmed that there were only 3 occupants travelling in the vehicle. He informed Ms. Noseworthy that his name was Jonathan and was able to provide details, including his mother’s name and phone number. He identified the driver as “Maddy” and asked if she was okay. The witness observed Jonathan tell Maddy that she was going to be okay. Based on the interaction, Ms. Noseworthy concluded that Maddy was Jonathan’s girlfriend. 25 . Ms. Noseworthy provided a statement to police.

She believed that she told the officer that Jonathan was the one who told her the names and ages of the persons in the car and provided his mother’s phone number. The witness was allowed to review the statement given to the officer for the purpose of refreshing her memory. After reviewing her statement, she testified that she relayed to the officer that Mr. Walker Clements told her that the Defendant lost control of the vehicle and tried to correct it and it then started flipping. According to Ms. Noseworthy, Jonathan did not know what happened.

One minute they were driving and the next minute they were in the accident. 26 . Ms. Noseworthy at one point during her interactions asked the Defendant what had happened and whether she was okay. The Defendant was in shock and distraught. She did not know what had happened. 27 . The witness did not observe any signs of impairment in either the Defendant or Mr. Walker Clements. 28 . Under cross-examination, the witness testified that she had not observed anything unusual prior to the accident. There were no signs of erratic driving. The incident happened out of nowhere.

Witness 6 – Jonathan Walker Clements – Front Passenger in the Defendant’s Car 29 . The witness testified that he was the Defendant’s boyfriend at the time of the July 26, 2019, accident. They had been in a relationship for about two months. 30 . On the date in question, they were travelling back from Guelph in the Defendant’s car along with their friend and fellow roommate, Riley Wamboldt. 31 . According to the witness, the Defendant and Mr. Wamboldt had consumed cannabis earlier that morning. Mr. Walker Clements denied consuming cannabis. 32 . At the time of the accident, Mr.

Walker Clements was looking down at his phone. Suddenly, the vehicle did a “big jerk”. The Defendant screamed. The next thing Mr. Walker Clements could remember was waking up as he was being put into an ambulance. 33 . The witness estimates that the Defendant’s vehicle was travelling between 120 to 140 km/hour. He could not recall whether the Defendant’s vehicle was passing other vehicles or being passed before the collision. 34 . When asked whether he had interfered with the Defendant’s driving or grabbed or touched the steering wheel immediately before or during the course of the collision, Mr.

Walker Clements answered: “No, it is not the passenger’s responsibility to have care and

control of the vehicle.” During follow up questions by the Crown, Mr. Walker Clements answered in the negative when asked if he had wanted to put himself or others in danger on the day of the accident. 35 . Under cross-examination, the witness testified that he had estimated that they were travelling between 120 to 140 km/hour but that he had not looked at the speedometer to confirm this. When asked if he and the Defendant were in the midst of a heated discussion prior to the accident, the witness answered: “not to my recollection”. 36 . When Mr.

Walker Clements was asked whether he had ever declared to a third party, Ms. Stephanie Valley, that he thought he had caused the accident by pulling on the steering wheel, the witness denied making such statements. When prompted again by defence counsel “ So you can’t be sure if you said to Ms. Valley ‘I think I did it…I think I pulled the wheel.’”, the witness replied, “I can’t recall.” Witness 7 – Ramasamy Jegatdeesan – Accident Witness 37 .

The witness was an off duty professional truck driver who was driving his car behind the Defendant’s motor vehicle shortly before and leading up to the accident on July 26, 2019. 38 . Mr. Jegatdeesan was returning home from work in his personal vehicle. He was travelling eastbound on Highway 407 East at approximately 110 km/hour. The collision occurred at around 8 pm in the evening. 39 . The witness testified that he was driving in the centre lane of the three lane highway in the vicinity of Lakeridge Road and Highway 407.

He observed a white car overtake him in the express lane at a speed of between 120 and 130 km/hour. The car then moved back into the centre lane ahead of him. About 5 to 10 seconds after the white car executed the passing manoeuvre, at a distance of 100 to 150 feet ahead of him, he noticed the white car start to swerve right and left (possibly 2 or 3 times). He described the vehicle as “shaking”. The car moved from the centre lane into the express lane to the left. The car then entered the ditch at the same speed. He did not observe any brake lights. 40 .

The white car then entered into the westbound lanes and collided with an oncoming vehicle in the third lane. According to Mr. Jegatdeesan, the vehicle then rolled over three times and went into the westbound ditch. 41 . The witness pulled over on the left shoulder of the eastbound Highway 407 and called the OPP for assistance. Witness 8 – Officer Maurice Wong – Identified the Deceased 42 . The witness is an OPP officer who was on duty on July 26, 2019. He was dispatched at 8:17 pm and arrived at the scene of the accident around 8:30 pm. 43 .

The officer testified that the accident scene was at Highway 407 and Kinsale Road overpass. Upon his arrival, all westbound lanes of the 407 were blocked by emergency vehicles. There was a dark Honda Accord with a demolished front end. There was a white Dodge Caliber in the ditch with a demolished rear end. 44 . Using a driver’s license, the officer was able to identify the deceased male seated in the rear driver’s side of the Dodge Caliber as Riley Nicholas Wamboldt with a date of birth of December 14, 1998. Witness 9 – Officer Peggy Horton – Took Scene Measurements 45 .

The witness is an OPP officer who arrived at the accident scene at 9:20 pm on July 26, 2019.

46 . The westbound lanes of Highway 407 were shut down. The eastbound lanes were partially shut down. At the officer’s request, the remaining eastbound lanes of the 407 were shut down to allow the investigation to move forward. 47 . Officer Horton’s role was to assist the lead accident reconstructionist, officer Steven St. Amand, in carrying out his duties. The witness walked through the accident scene noting tire marks on the road, in the grass and debris on the road. The witness was tasked with mapping the evidence on scene with the aid of measuring equipment and making field notes.

The officer produced a scale diagram of the accident scene which was made an exhibit at trial. The diagram formed part of officer St. Amand’s accident reconstruction report. Witness 10 – Officer James Lefave – SOCO Photographer 48 . The witness is an OPP officer who took over 350 accident scene photos on July 26, 2019. Exhibit 7 consists of select photos taken by the witness. The witness testified that all photos taken accurately reflect the scene as he saw it on July 26, 2019. Witness 11 – Officer Carl Sheardon – Mechanical Inspection 49 .

The witness was qualified by the court as an expert in the area of motor vehicle mechanical inspections. The witness has been conducting mechanical inspections for the OPP since January 2011. The defence, having reviewed the witness’ resume, conceded the witness’ expertise and consequently no voir dire was held on this issue. 50 . The witness testified that he conducted a search warrant authorized inspection of the Defendant’s motor vehicle on September 26, 2019, at a secured outdoor impound lot. The vehicle in question was a 2010 Dodge Caliber bearing VIN 1B3CB4HA8AD606119. 51 .

The officer inspected the following components: steering, engine, brakes, tires, suspension, outward visibility. At the conclusion of the mechanical inspection, he observed no defects or components that contributed to the collision. Witness 12 – Officer Steven St. Amand – Lead Accident Reconstructionist 52 . The officer was qualified by the court to provide expert opinion evidence in the area of accident reconstruction (specifically in the areas of roadway evidence analysis, collision sequencing, vehicle damage analysis and event data recorder analysis).

The defence conceded the witness’ expertise and therefore no voir dire was held. 53 . On July 26, 2019, the officer responded to a call for service to the scene of the accident. Travelling from Burlington, the officer arrived at the accident scene at 9:45 pm via the eastbound lanes of Highway 407 East. Upon arriving on scene, the westbound lanes of the 407 were closed in the area of the accident. Only the left eastbound lane (lane 1) had been closed. The officer requested that lane 2 (middle lane) and lane 3 (right lane) be closed in order to carry out the investigation. 54 .

The officer observed 2 vehicles involved in the collision located in the westbound lanes of the 407 near the Kinsale Road overpass. The vehicles were on the west side of the overpass (one in the bullnose area, the other in the right shoulder area.) 55 . The posted speed limit on Highway 407 East in this area is 100 km/hour. 56 . With respect to eastbound lanes, there are 3 lanes that are marked with painted dashed lines: lane 1 (through lane on the left), lane 2 (middle lane) and lane 3 (right lane). In addition, there is an off ramp lane that diverged from lane 3 to an interchange further up ahead to the east.

57 . There was a left shoulder area that diverged from the through lane with a solid yellow line. Within the shoulder area there was a rumble strip that transitioned to a gravel

section and then a grassy

section which divided the eastbound and westbound lanes. There was no centre barrier. 58 . On the right hand side there was a steel barrier that bordered the highway and the right shoulder area. The right shoulder area was marked by a white solid line. 59 . The officer inspected the eastbound roadway and found no concerns with the asphalt surface or with debris on the road. Travelling eastbound on the roadway in this location, there is a very minor grade increase of 1.2 %. There is a corresponding downhill grade of 1.2% when travelling westbound. Overall the roadway was straight with no curves in the area.

On the eastbound side there was overhead LED lighting although it would not have been activated at the time of the collision. The collision occurred around 8:15 pm. Sunset that evening was 8:46 pm. However, all lighting was found to be working properly. 60 . The officer did a walk through of both the eastbound and westbound lanes to review the debris and evidence. He found tire marks (black marks on the pavement) as well as tire marks through the centre ditch area. In addition, he observed transfer marks on the westbound lanes and debris from the vehicles as well as blood.

He noted the final resting position of the 2 vehicles involved in the collision and located the body of the deceased person. 61 . The officer then made notations on the road surface using chalk and placed evidence marker cones. 62 . The officer took the court through the photos of the eastbound lane tire marks that he observed. The tire marks indicate that the Defendant’s motor vehicle begins to leave tire marks in lane 2 (centre lane) into lane 3 (right lane). The car then hooked counter clockwise back over lane 2 and lane 1 into the centre ditch area.

In the westbound lanes of Highway 407 are four white transfer marks on the road surface indicating where the Defendant’s white Dodge Caliber rolled over. The officer identified approximately six touch down points where there is transfer to the road surface. The first four transfer marks are during the roll over prior to impacting the Honda Accord. 63 . The witness testified that he was 100% confident that the tire marks on the eastbound lanes are from the Dodge Caliber. 64 .

Vehicle debris was located in the westbound lanes of Highway 407 coming from the Dodge Caliber and the Honda Accord primarily where the Honda Accord came to rest. There was no vehicle debris in the eastbound lanes of the 407. 65 . With respect to mechanical fitness, the officer noted 2 recalls for Dodge Calibers. However, a VIN search of the Defendant’s car revealed that the recalls were completed and would not have contributed to the collision. 66 . The witness further reviewed the Airbag Control Module (ACM) data which was downloaded and imaged by officer Smith at the scene.

Page 33 of the Collision Reconstruction Report, prepared by officer St. Amand discusses the crash data retrieval system analysis. The ACM is a component of the supplemental restraint system that records certain vehicle functions in order to determine whether or not to deploy the airbags based on an algorithm. In this case, a review of the ACM data, revealed that there were 2 recorded events. They were non-deployment events because no air bags were deployed during the collision. One event was labelled “Most recent event” the other was labelled “first prior event”. 67 .

In this particular ACM the data is captured for 5 seconds (10 recordings per second for a total of 50 recordings). Information captured is the vehicle speed, accelerator pedal percentage, engine rpm, brake status, and other operating conditions and Delta V (the change of velocity as picked up by the ACM). The change of velocity determines the deployment or non-deployment based on a threshold. 68 . The data reviewed was consistent with the impact (a rear vehicle impact into the Dodge Caliber). 69 . The officer noted that at – 5 seconds (pre-crash data) p. 35 of the report: vehicle speed 109 km/hour with brakes on.

As the vehicle’s wheels left the roadway, the speed calculation becomes less accurate. The data at 0 seconds would be unreliable as the speed

would be under or over reported. However, the car’s wheels would likely still have been in contact with the road surface when data was captured at - 5 seconds. Extrapolating backwards, the speed should be slightly higher or the same based on the reading that there was braking activity at - 5 seconds. 70 . The officer received two camera views from the MTO (cameras 943 and 944).

Using the time stamps on the video camera recordings and Google Earth to calculate a distance of 1.4 km between cameras 943 and 944, the officer was able to calculate that the Dodge Caliber travelled at an average constant velocity of 136 km/hour between the two points. 71 . With respect to accident reconstruction, a number of causative factors are considered: 1) mechanical causation, 2) environmental causation (weather, road design), and 3) human factor (fatigue, inexperience). Causation can come from one or more of these factors. 72 .

The officer concluded in this case that there were no mechanical deficiencies noted and no issues with the road conditions. The only remaining factor was the human factor. The vehicle was in a “yaw”. To be in a yaw, there needs to be a steering input or impact. As there were no signs of impact with debris in the eastbound lanes prior to the collision, the officer concluded that “an abrupt steering input” caused the vehicle to enter into yaw. The officer described yaw as a vehicle travelling in one direction while spinning in another direction.

What caused the abrupt steering input could not be determined by the officer. Witness 13 – Officer Adam Smith - Investigator 73 . The witness is an OPP officer as well as a certified mechanic and forensic mechanic for the OPP. The officer attended the accident scene at 9:32 pm on July 26, 2019 and conducted an on scene examination of the Defendant’s Dodge Caliber and the Honda Accord involved in the collision. 74 . The witness inspected the tires on the Dodge Caliber. They were found to be inflated and the tread depth was in good condition.

The officer pressed the brake pedal and found it to be firm with pressure with no obstructions. He also turned the steering wheel and observed that it turned both tires. The tie rods that moved the wheels back and forth were still attached. 75 . Finally, the officer extracted the data from the air bag control module of the Dodge Caliber at the scene for the use and analysis by the accident reconstructionist. Witness 14 – Officer Eric Levely - Investigator 76 . The witness is employed as an OPP officer. The officer was one of the investigators assigned to the July 26, 2019, accident.

His involvement was on the night of the accident as well as through follow up interviews in the days after the accident. 77 . Travelling westbound on Highway 407 East, the officer was the first to arrive at the accident scene at 8:23 pm followed shortly by EMS. The road conditions were clear and dry. It was a nice summer night. Traffic was generally light apart from the backup in the area of the accident. 78 . The officer observed debris on the roadway on the westbound side. There was a Honda located partly in lane 3 and on the shoulder. There was another extensively damaged vehicle in the north ditch. 79 .

The officer interacted with both vehicles and the occupants to prioritize injuries. He spoke briefly with witnesses. Other officers spoke with witnesses more in depth. 80 . The officer conducted a cursory search of the white Dodge Caliber in the ditch. A more in depth search of the vehicle conducted on August 1, 2019 at Durham Towing uncovered a number of items including: a pink iPhone and, located under the passenger seat, a bong with marijuana residue and a grinder.

81 . The officer would go on to interview and receive individual video statements from the Defendant and Jonathan Walker Clements on August 3, 2019. The Crown, in anticipation of a voir dire application on a hearsay statement made to defence witness Stephanie Valley, requested that the court enter into a voir dire to consider the voluntariness of the statements made by the Defendant and by Mr. Walker Clements. 82 . The witness spoke with the Defendant over the phone on August 1, 2019 at approximately 1:10 pm.

The call was a wellness check to see when she would be released from hospital and to obtain her recall of what had happened. She advised that she had just gotten out of the hospital. She did not recall much about the accident. A follow up in person meeting at the OPP station was setup for August 3, 2019, at 6:30 pm in order to return her phone and wallet and to provide a voluntary statement if she wished. He advised the Defendant that she could seek legal advice. 83 . The Defendant attended the station on August 3, 2019 and provided a video statement.

The video statement was played back during the trial along with an unofficial transcript provided as an aid to the court. At the conclusion of the first voir dire, the court concluded that the Defendant had made her statement voluntarily to the officer. The video statement was made an exhibit in the trial proper. 84 . Additionally, the witness took a video recorded statement from Jonathan Walker Clements on August 3, 2019. A formal transcript of the statement was provided. The court entered into a second voir dire to determine the voluntariness of the statement.

The Crown and the Defence agreed that the video statement be made an exhibit within the four corners of the voir dire in anticipation of the defence’s application regarding the hearsay statement of defence witness Stephanie Valley. Defence Evidence Witness 15 – Stephanie Valley 85 . The defence called Stephanie Valley to testify. Ms. Valley testified that Mr. Walker Clements made inculpatory statements to her at the hospital on the day of the accident prior to being interviewed by police and again on the day following the accident at his residence when Ms. Valley came to stay with him to monitor his condition.

The defence sought to have these hearsay statements entered into evidence following a voir dire. On October 3, 2022, the court provided written reasons determining that on the basis of necessity and threshold reliability, the evidence of Ms. Valley concerning statements made to her by Mr. Walker Clements were admissible at trial with the issue of ultimate reliability to be determined later by this court as the trier of fact. 86 . Ms. Valley testified that she was present in Mr. Walker Clements’ hospital room on the day of the accident while he was lying in bed. Ms.

Valley asked him if he remembered anything at all about the accident. Mr. Walker-Clements eventually stated: “I did it” and “I think I did it, I think I pulled the wheel”. During this conversation, Mr. Walker Clements promised Ms. Valley that he would tell the police what he had told her. Moments after this utterance from his hospital bed, police entered the room and interviewed Mr. Walker Clements. At the conclusion of the police interview, Ms. Valley returned and asked Mr. Walker Clements if he had discussed his involvement in the accident with police. Mr.

Walker Clements replied that he had not because he was scared. 87 . Ms. Valley testified that the following day she volunteered to watch over Mr. Walker Clements at his home that night after his release from the hospital. According to Ms. Valley, that evening while she was siting alone on Mr. Walker Clements’ porch, Mr. Walker Clements approached her from behind and stated the words: “I did it”. He then sat down beside her and said: “I did it, I pulled the wheel”. Ms. Valley was in shock and retreated to the kitchen to gather her thoughts. She then asked Mr.

Walker Clements to clarify whether or not he had pulled the steering wheel. To which Mr. Walker Clements replied: “ I did it, I did pull the wheel.” Ms. Valley asked Mr. Walker Clements to explain what happened. Mr. Walker Clements replied that he was unsure but that he was having a conversation with Ms. Sprayson (‘Maddie’) and that it might have turned into an argument. He further indicated that in the past when he had gotten angry, he had grabbed on the steering wheel and yanked it. 88 . Ms. Valley indicated that she is a casual acquaintance of both the Defendant and Mr.

Walker Clements, having interacted with them on 4 occasions prior to the accident. Ms. Valley’s connection to the parties is through Ms. Paula Carl, one of her best friends. Ms. Carl was dating Mr. Wamboldt at the time of the accident. Ms. Carl is also a friend of the Defendant. Witness 16 – Maddison Sprayson - Defendant

89 . The Defendant testified solely in the context of the admissibility voir dire in regard to the hearsay statements received by Stephanie Valley. ANALYSIS The Law 90 . Section 130(1) of the Highway Traffic Act reads: “Every person is guilty of the offence of driving carelessly who drives a vehicle or street car on a highway without due care and attention or without reasonable consideration for other persons using the highway.” 91 . The law with respect to careless driving is well settled. One of the leading cases on the offence of careless driving remains the Ontario Court of Appeal’s decision in R. v.

Beauchamp . [1] More recently, the Ontario Court of Appeal had an opportunity to further clarify the legal test and principles surrounding the offence of careless driving in R. v. Shergill [2] when it affirmed [3] the Ontario Court of Justice’s decision and denied a leave to appeal. 92 . In

summary: • Careless driving is a strict liability offence; ( Shergill para. 22 ) • Mens rea is not a relevant factor for consideration and therefore the court need not determine if the conduct is blameworthy and deserving of punishment; ( Shergill para. 22 ) • Inadvertent negligence (i.e. simple negligence) is the gravamen of the offence of careless driving; ( Shergill para. 26 ) • The Crown must show, beyond a reasonable doubt, that the defendant’s conduct fell below the standard expected of a reasonably prudent driver in the circumstances; • The standard does not demand perfection; ( Shergill para. 13 ) • Each case will be determined on its own facts requiring a contextual analysis of the relevant circumstances to determine the standard of care expected of the reasonably prudent person; ( Shergill para. 23 ) • The contextual analysis must be on the conduct of the driver at the time the offence is alleged to have been committed.

It is of no consequence that the driver was driving properly for a period of time prior to the commission of the offence. ( Shergill para. 30 ) • The fact that the accident occurred may be sufficient to establish the actus reus “if the only reasonable inference to be drawn from the fact of an accident is that the defendant was operating his or her vehicle on a highway without due care and attention or without reasonable consideration for other persons using the highway.” ( Shergill para. 24 ) • Momentary inattentiveness can constitute careless driving if “the degree of inattentiveness displayed by the defendant goes beyond what one would expect of a reasonably prudent driver in the circumstances” ( Shergill para. 28 )

• Where the Crown proves the actus reus beyond a reasonable doubt, the defendant can avoid conviction by establishing, on a balance of probabilities, a defence of reasonable mistake of fact or that he or she exercised reasonable care in the circumstances. Context 93 . Undeniably, the events of July 26, 2019, are nothing short of a tragedy. The court’s decision today can never change this reality. 94 . The court heard evidence from fourteen prosecution witnesses over several days of trial. The court was also able to view the moments leading up to the collision through MTO video footage entered into evidence.

It is evident that a catastrophic loss of control of the Defendant’s motor vehicle resulted in disaster. 95 . The evidence reveals that the accident took place on a clear, dry summer evening. The traffic volume was moderate. There were no obstructions or defects in the roadway surface. The road in this

section of Highway 407 is relatively straight with a very minor grade. 96 . The Crown submits that the Defendant drove carelessly without due care and attention or without reasonable consideration for other persons using the highway. The Crown led evidence through accident eyewitnesses as well as police testimony, witness interviews, mechanical inspections, and accident reconstruction evidence. 97 . The Defence submits that the Crown has not met its onus in this case. The court is asked to consider two alternative explanations for the accident.

The first explanation, and the most likely according to the Defence, is that Mr. Walker Clements pulled the Defendant’s steering wheel in a dangerous temper tantrum with catastrophic results. The second possible explanation for the Defendant’s loss of control of her car is an unidentified mechanical failure. Scenario 1 – Front Passenger Interference 98 . The evidence of accident reconstructionist Steven St. Amand, and his final conclusion, was that the accident was caused by an abrupt steering input. What caused that abrupt steering input, officer St. Amand could not say.

When asked if that steering input could be from a passenger yanking on the steering wheel, he responded that, hypothetically, it could. Moreover, there was nothing in the recovered vehicle data excluding this possibility. 99 . Ms. Valley testified that Mr. Walker Clements repeatedly told her in the hours following the accident that he had caused the collision by pulling on the Defendant’s steering wheel with statements such as “I did it, I pulled the wheel”. He said it for the first time at the hospital on the night of the accident. He then told her again the following day at his home while Ms.

Valley was sitting on his porch. He told her a third time in his kitchen when Ms. Valley sought to ensure that she had clearly understood what Mr. Walker Clements was admitting to. The phrasing of the statements was simple and shocking. They are the type of statements that are easiest to remember. Mr. Walker Clements would have no reason to manufacture these statements. Ms. Valley is not a partisan in this matter. She had no real relationship with the Defendant or Mr. Walker Clements. Her strongest connection was that her best friend, Ms. Paula Carl, was in a relationship with the deceased. 100 .

The court will not re-examine the law with respect to the admissibility of hearsay evidence under the principled exception to the hearsay rule. I rely on the written reasons provided to the parties on October 3, 2022. The Crown’s concerns with Ms. Valley’s evidence and her credibility have already been duly noted. As I previously indicated, when reviewed as a whole, Ms. Valley’s testimony was coherent and forthright. She is not partisan having only met the Defendant and Mr.

Walker Clements on about 4 prior occasions to the accident and having had no further contact with either party since the immediate aftermath of the accident. The court finds her evidence to be reliable for the purpose of consideration by the trier of fact. 101 . Mr. Walker Clements testified for the prosecution. He denied causing the accident. His testimony was at times evasive, combative, inconsistent, and self-serving. The court has very real concerns with respect to the reliability of his evidence. There were notable inconsistencies between his video statement provided to police and his testimony in court.

The court is alive to the fact that the transcript of Mr. Walker Clements’ video statement was not put to him directly during cross-examination. Therefore, the court must be prudent not to draw negative credibility inferences. However, the inconsistencies remain and, as will be seen in the following examples,

both statements cannot be true at the same time. Furthermore, the inconsistencies also conveniently painted the Defendant in a less favourable light at trial, conceivably, in an effort by Mr. Walker Clements to escape liability. 102 . By way of example, Mr. Walker Clements declared to police that the Defendant was driving between 100 to 110 km/hour and just keeping up with traffic at the time of the collision. At trial, Mr. Walker Clements testified that the Defendant was driving between 120 and 140 km/hour, although he acknowledged that he had not observed her speedometer as he was looking down at his phone.

With respect to cannabis use, Mr. Walker Clements declared to police that only Riley Wamboldt had consumed cannabis on the day of the collision. However, at trial he departed from his video statement and testified that both Mr. Wamboldt and the Defendant had consumed cannabis on the day of the accident. 103 . A considered review of Mr. Walker’s testimony surrounding his denial of having caused the accident also raises concern. His testimony was evasive, varying from a denial of making such a statement to being unable to recall making such a statement (e.g. “No I don’t recall so I wouldn’t know.”).

Speed and Driving Behaviour 104 . The Crown led evidence regarding the Defendant’s speed and driving behaviour through several witnesses. 105 . Glenn Mizen was following the Defendant’s motor vehicle at a distance of about 500 meters while driving at 110 km / hour. He witnessed the Defendant’s vehicle leave the eastbound lanes of Highway 407 and collide with an oncoming westbound vehicle. Notably, he did not observe any concerning driving behaviours from the Defendant’s motor vehicle prior to the accident. 106 . Tammy Noseworthy was in the front passenger seat of Mr. Mizen’s car.

She testified that she did not observe any erratic driving or anything unusual before the collision. In her words, the accident happened out of nowhere. 107 . Ramasamy Jegatdeesan, an off-duty truck driver, was driving his car in the centre lane on the eastbound Highway 407 East. He observed the Defendant’s white car overtake him in the express lane at a speed of between 120 and 130 km/hour. The Defendant’s car then moved back into the centre lane ahead of him and shortly after lost control and collided with an oncoming westbound vehicle. There were a number of difficulties with the witness’ testimony.

He testified that as the Defendant’s vehicle lost control and went into the grassy median, it left the roadway without slowing down and with no sign of braking such as brake lights. However, the objective algorithmic data retrieved from the Defendant’s car revealed a speed of 109 km/hour with the brakes being applied in the 5 seconds before the crash. Moreover, the witness testified that the Defendant’s vehicle rolled after hitting the oncoming westbound car. It was only after reviewing the CCTV video that the witness realized that the Defendant’s motor vehicle rolled prior to the collision.

The court cannot place great reliance on the witness’ estimate as to the speed of the Defendant’s motor vehicle. In addition, the court notes that the witness was never required to take responsive action as a result of the Defendant’s driving. 108 . The lead accident reconstructionist, officer St. Amand, based his estimation of the speed of the Defendant’s motor vehicle using two criteria. The first was that MTO cameras 943 and 944 (which are the consecutive cameras leading up to the accident view) are spaced 1400 meters apart according to Google Earth.

The second criteria was the time stamps on the MTO camera videos. The officer calculated that it took approximately 37 seconds for the Defendant’s vehicle to travel between camera 943 and 944. Based on a constant velocity equation, he determined that the Defendant’s car would have been driving at an approximate constant velocity of 136 km/h. Defense counsel submits that the officer’s speed calculation could have been corroborated by physically measuring the distance between the two points and by taking steps to verify the accuracy of the video time stamps. The officer did neither. 109 .

The Crown submitted caselaw in support of the proposition that courts have now long accepted that Google Maps is a tool of indisputable accuracy for which trial courts may take judicial notice [4] . In this regard, I agree with the Crown. Defense counsel argued that none of the caselaw stands for the proposition that Google Maps is an appropriate proxy for actual measurements. The defense acknowledged that while the maps may be accurate, this does not speak to the accuracy of the officer’s use of the maps. 110 . I am not persuaded that any specialized training is required to effectively utilize Google Maps.

However, MTO cameras and video timestamps do not, in the Court’s view, rise to the standard of a source of indisputable accuracy. Neither the MTO witness, Mr. Armoogam, nor officer St. Amand could indicate when the cameras had last been tested or serviced. For this reason, and given the high stakes of this trial, the court has sufficient cause for concern on the accuracy of officer St. Amand’s speed calculation. The only objective data presented during the trial was that the Defendant was driving 109 km/h shortly before the collision.

111 . Alternatively, if the officer’s speed calculation can withstand scrutiny, this still leaves the issue of whether driving 136 km/h on a 400 series highway constitutes driving without due care and attention or without reasonable consideration for other persons using the highway. Speeding, even if proven beyond a reasonable doubt, does not by itself demonstrate carelessness. [5] A contextual analysis of the circumstances of the collision is necessary. In R. v.

Beauchamp , the Court of Appeal held that: “The use of the term "due care", which means care owing in the circumstances, makes it quite clear that, while the legal standard of care remains the same in the sense that it is what the average careful man would have done in like circumstances, the factual standard is a constantly shifting one, depending on road, visibility, weather conditions, traffic conditions that exist or may reasonably be expected, and any other conditions that ordinary prudent drivers would take into consideration .

It is a question of fact, depending on the circumstances in each case. [6] ” (emphasis added) 112 . Consider the evidence before the court that the accident occurred on a clear, dry summer’s evening with moderate traffic. The highway was straight with no meaningful elevation changes. There were no defects in the road and no debris or other obstructions. None of the Crown’s eyewitnesses were required to take any responsive actions as a result of the Defendant’s driving. 113 .

If the Crown’s theory is to be believed, the Court would have to conclude that the Defendant engaged in some unknown, unstated, and unexplained act of carelessness resulting in a loss of control of her motor vehicle along a straight stretch of clear highway. Contrast this with the evidence that the Defendant and Mr. Walker Clements had a disagreement, and, in a moment of foolishness, Mr. Walker Clements pulled the steering wheel as he had done on a prior occasion with the Defendant. Recalling officer St.

Amand’s conclusion that the accident was caused by an “abrupt steering input”, the defense has raised reasonable doubt and the Crown has not met its onus. Scenario 2 – Mechanical Failure 114 . The defense suggested that another plausible explanation for the accident was an unidentified mechanical failure. 115 . The Court heard from three crown witnesses who testified about the condition of the Defendant’s vehicle. 116 . Officer Smith inspected the Defendant’s vehicle at the accident scene. He inspected the tires and found no issues with the tread depth or inflation.

He tested the brake pedal and steering wheel and did not note any concerns. 117 . Officer St. Amand conducted a VIN search of the Defendant’s motor vehicle. He noted that there were two recalls for the make and model of the Defendant’s car. These recalls had been completed and would not have contributed to the collision. 118 . Officer Sheardon conducted a subsequent inspection at a secure impound lot. He inspected the car’s steering, engine, brakes, tires, suspension and outward visibility.

At the conclusion of the mechanical inspection, he observed no defects or components that contributed to the collision. 119 . Overall, the defense theory that the accident was caused by an undetected mechanical defect was simply not persuasive. CONCLUSION: 120 . The Crown has not discharged its onus to establish beyond a reasonable doubt that the Defendant did drive without due care and attention or without reasonable consideration for other persons using the highway. Accordingly, the Defendant is acquitted of all charges. Released: December 21, 2022

Signed: Justice of the Peace L. Bourgon