R. v. Blanchard, 2019 NLSC 216

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Blanchard , 2019 NLSC 216 Date : December 6, 2019 Docket : 201804G0316 Her Majesty The Queen v. Neila Blanchard Before: Justice Valerie L. Marshall Place of Hearing: Corner Brook, Newfoundland and Labrador Dates of Hearing: October 28, 29, 30, 31, 2019 Appearances: Trina D. Simms Appearing on behalf of the Crown T. James Bennett Appearing on behalf of the Accused

Authorities Cited: CASES CONSIDERED: R. v. Lifchus, (SCC), [1997] 3 S.C.R. 320; R. v. Starr, 2000 SCC 40; R. v. Roy, 2012 SCC26; R. v. Beatty, 2008 SCC 5. STATUTES CONSIDERED: Criminal Code of Canada, R.S.C. 1985 c. C-46.

REASONS FOR JUDGMENT Marshall, J.: INTRODUCTION [1] Tragically, while walking to school on the morning of September 11, 2017, Justin Hynes was struck and fatally injured by amotor vehicle driven by the Accused, Neila Blanchard, in the Community of Cow Head, Newfoundland and Labrador. [2] The Accused stands charged with the offence of dangerous operation of a motor vehicle causing death, under section 249(4) ofthe Criminal Code of Canada, R.S.C. 1985 c. C-46 (the “Code”).

The charge is described in the bill of indictment as follows: Neila Blanchard of the community of Parson’s Pond, in the Province of Newfoundland and Labrador, is charged that she: Count # 1 on or about the 11th day of September, A.D., 2017, at or near Cow Head, in the Province of Newfoundland and Labrador, did operate amotor vehicle on a public roadway in a manner that was dangerous to the public and thereby caused the death of Justin Simon Hynes,contrary to s. 249(4) of the Criminal Code; [3] The Accused’s trial proceeded for four days, commencing on October 28, 2019. The Crown called thirteen witnesses.

TheDefence did not call any evidence. [4] The issue to be determined is whether the Crown has proven beyond a reasonable doubt that the Accused committed theoffence of dangerous operation of a motor vehicle causing death.

SUMMARY OF EVIDENCE Constable Ashley Coles [5] The first witness was RCMP Constable Ashley Coles. Constable Coles took over as lead investigator in this matter onNovember 21, 2017. His involvement included obtaining statements. He also obtained the Accused’s medical records through aproduction order, for the purpose of assessing whether the Accused had been impaired at the time of the collision. [6] On December 18, 2017, Constable Coles arrested the Accused at her residence in Parson’s Pond. A transcript of theconversation at the time of arrest was provided to the Court.

Constable Coles arrested the Accused for the offence of dangerousoperation of a motor vehicle causing death; and he advised her that she was also being investigated for impaired operation of a vehiclecausing death. Constable Coles cautioned the Accused, and informed the Accused of her rights. He then proceeded to drive her fromParson’s Pond to the RCMP detachment in Corner Brook. [7] During the drive to the detachment, Constable Coles contacted legal counsel for the Accused.

A second transcript wasprovided of a brief conversation between Constable Coles and Constable Langley regarding same; and between Constable Coles and alawyer for the Accused. [8] A third transcript was provided of a further conversation between Constable Coles and the Accused’s lawyer. The recordingwas then turned off in order to allow the Accused to speak privately to her lawyer. [9] Constable Cole’s evidence was that at the Corner Brook detachment, the Accused was taken to an interview room where shewas interviewed by him, without a lawyer being present.

This was recorded, and that transcript was also provided to the Court. [10] The transcript of the interview shows that in the course of the interview, the Accused referred to the collision as an accident. She also made reference to being sick; and she said to Constable Coles that she remembered nothing about the collision, as it was a blur.

[ 11 ] With respect to the Accused’s medical records from the date of the collision, Constable Coles’ evidence was that these records were given to a drug impairment expert at the RCMP’s forensic lab, for the purpose of obtaining an opinion on whether the Accused had been impaired at the time of the collision. The records included a list of the prescriptions issued to the Accused over a 12 month period, and a hospital blood analysis report.

The RCMP wanted an opinion on whether the medications in the Accused’s system, at the time of the collision, would have affected her ability to operate a motor vehicle, and whether she had been impaired. Based on the expert opinion of Gillian Sayer, no charges of impairment were laid against the Accused. Constable James Barter [ 12 ] Constable James Barter of the RCMP was working on the date of the collision, and he became involved in the investigation.

He attended the scene of the collision in response to the initial call from telecom operators indicating that a young boy in Cow Head had been run over by a car, and required immediate response. [ 13 ] Constable Barter attended the scene with Sergeant Humber. They set up police cars on the north and south sides of the collision scene on the main road, in order to control traffic. Constable Barter’s evidence was that the collision scene was at the intersection of the main road (which is called “Main Street”) in Cow Head, and a roadway which was later described as Veteran’s Drive.

He described there being a museum just before the intersection on the right side of the main road, when travelling south; and there is a café on the other side of the intersection, but on the same side of the main road when driving south. [ 14 ] At the scene, Constable Barter observed a damaged red Honda CRV on the right hand side of the main road; and the deceased’s body on the right shoulder of the road. He further observed that papers were strewn all over the main road, and that there was blood and shoes on the road. It was determined that the deceased was Justin Hynes.

The scene was documented, and photos were taken by Constable Barter. The photos were entered in evidence. [ 15 ] Constable Barter interacted with the Accused at the scene, when she was in the back of the ambulance. At trial, the Crown requested a voir dire with respect to comments made by the Accused in response to Constable Barter’s questions. The Defence did not contest the admissibility of the comments made by the Accused to Constable Barter. [ 16 ] Further, based on the evidence I am satisfied that the Accused’s comments were voluntarily made to Constable Barter.

According to Constable Barter, when he interacted with the Accused, she was crying and appeared to be in shock. However, Constable Barter said the Accused seemed aware of what had happened, and she was able to speak with him. Constable Barter was a credible and reliable witness; and I accept his evidence regarding his communications with the Accused. [ 17 ] The Accused confirmed for Constable Barter that she had been the driver of the vehicle in the collision, and that she had been driving to work at the fish plant in Cow Head.

The Accused indicated that she had taken an antidepressant, and stomach medication that morning before going to work. Constable Barter asked the Accused if the medication affected her ability to drive, and she responded that it did not make her drowsy. The Accused told Constable Barter that she saw the boy walking. She negotiated the turn in the main road; and that where the collision occurred, she advised that she went over the shoulder of the road, and tried to get back on the road. The Accused advised Constable Barter that she stopped and got out of the car.

She said that she then got back in the car; someone came by, and she asked that person if the boy was all right, or if he had died. [ 18 ] Constable Barter’s photos depict the Accused’s damaged red vehicle on the main road, and in the area of the intersection with Veteran’s Drive. The windshield is damaged, and what looked like a student’s notebook was on the windshield. The photos depict the deceased’s body lying on the shoulder of the road covered by a blanket. The body is at an angle to the main road.

The deceased’s hand appears to be holding a backpack. [ 19 ] At the intersection, the photos depict a red fire hydrant in the grass, on the right southbound side of the main road. The fire hydrant is close to, and before, the corner of the intersection and the road sign for Veteran’s Drive; and it is in front of a house, which was identified by other witnesses as Ed Sheppard’s house. The Sheppard house is after the museum, and before the intersection when driving south on the main road. The photos depict a black shoe or sneaker close to the fire hydrant, presumably belonging to the deceased.

The other sneaker was depicted as being underneath the vehicle. [ 20 ] The photos also depict an abundance of papers strewn over a large area past the fire hydrant, around the area of the intersection, and further south beyond to the body of the deceased. The papers appeared to include loose leaf, and folders like those used by students.

Constable Barter’s evidence was that there was a slight breeze that day, enough to blow the papers around, but not enough to blow a book around. [ 21 ] The photos also depict what Constable Barter described as scuff marks, and what looked like marks of blood on the right side of the road, starting close to the middle of the intersection, and leading up to the deceased’s body. [ 22 ] Further photos of the scene included photos depicting the wooden movable sign for the museum, which was shown as broken on the right side of the main road, on the grass in front of the museum.

A piece of the sign also appeared to be on the grass. The photos also depicted what Constable Barter described as tire marks on the shoulder of the road, both on the gravel and grass. A portion of the right side of the main road around the museum had potholes, and patched areas. [ 23 ] Constable Barter confirmed that he had searched the Accused’s driving records, and he determined that the Accused had a clean driving record. Further, he had also checked CPIC and he confirmed the Accused had never been stopped by the police. Ambrose Craig Chatman [ 24 ] Mr.

Chatman used to live in the community of Three Mile Rock, on the Northern Peninsula, which is approximately three kilometers south of the community of Parson’s Pond. He knew the Accused, and he was familiar with her vehicle. [ 25 ] Mr. Chatman’s evidence was that on September 11, 2017, he had left his home in Three Mile Rock at about 8:10 a.m. He drove

to the entrance to the highway, and then stopped. He was going to turn left, and drive north to Parson’s Pond. While stopped, he observed the Accused’s driving her vehicle; the Accused’s vehicle was driving south from the area of Parson’s Pond towards Cow Head. While waiting for the Accused’s vehicle to pass, and before the Accused’s vehicle got to where Mr. Chatman was waiting, he observed her vehicle veer off onto the narrow shoulder of the road, and her vehicle headed towards the ditch. He observed that her vehicle then swerved back onto the highway, and continued on. [ 26 ] Mr.

Chatman clarified that only the Accused’s two passenger tires had been on the gravel shoulder, when veering. The gravel shoulder is only about a foot wide; and there is about six inches of pavement from the white line on the highway, to the shoulder. His evidence was that the Accused’s correction of the vehicle was not a big correction, and that she did not over-correct; there was no fishtailing, and her vehicle just swayed a little bit. He did not think that she was speeding. Calvin Brown [ 27 ] Calvin Brown lives in Cow Head, and has done so for all his life.

He described an incident during which the Accused’s vehicle apparently drove close behind his, on the morning of September 11, 2017. [ 28 ] Specifically, he described picking up his friend and workmate, Craig Payne, at around 8 a.m. that morning. They drove in a northerly direction on the main road to check on a friend’s property. After checking on the property, Mr. Brown then pulled off the shoulder of the main road to drive in a southerly direction to work. While pulling off the shoulder of the road, Mr. Brown looked in the side mirror of his vehicle, and he saw another vehicle on the main road in Cow Head.

He described that vehicle as a ways back, about two or three hundred meters. Mr. Brown put on his signal light, pulled off the shoulder and onto the main road, and then proceeded south. He was heading towards Cow Head’s town maintenance building, where he worked and where he was going to pick up some tools. The left turn off for the town maintenance building was a distance of about 500 meters south from where he had pulled onto the main road. Mr. Brown’s evidence was that the speed limit on the main road in Cow Head is 50 kilometers per hour. [ 29 ] Mr.

Brown’s evidence was that after he pulled off the shoulder onto the road, he was driving about 30 kilometers per hour; and a burgundy coloured vehicle came right up behind his vehicle. He proceeded to speed up a bit, and the vehicle did the same. He sped up a second time, and the vehicle did it again. Mr. Brown commented to Craig Payne words to the effect that someone was in a rush. Mr. Brown had to then slow down to make the left turn off the main road, to drive down another road to the town maintenance building.

He slowed down and practically came to a stop, in order to make the left turn to the town maintenance building. At that time, the burgundy vehicle was still right behind his truck. [ 30 ] After Mr. Brown turned left, his evidence was that the burgundy vehicle took off “pretty fast”. However, he did not see this. Rather, he surmised this based on the sound of the burgundy vehicle accelerating. [ 31 ] A short time after, at around 8:20 a.m. or 8:30 a.m., Mr. Brown saw that same burgundy vehicle that had been driving close behind him.

He saw it in the middle of the road at the collision scene. [ 32 ] In cross-examination, Calvin Brown confirmed that when his vehicle practically came to a stop to make a left turn to head toward the town maintenance building, there was room for a car to pass him on the shoulder of the road; however, the car that was following him did not try to pass him. Rather, it also practically came to a stop, and then accelerated after he had turned off the main road. His evidence also confirmed that he did not speed while driving on the main road. [ 33 ] Mr.

Brown also explained that there are two intersections leading to what is referred to as the “head of Cow Head”. The first one is two to three hundred meters from the turn-off to the town maintenance building, and the second one is a couple of hundred feet after that. [ 34 ] His evidence was that driving conditions were good that day. Craig Payne [ 35 ] Craig Payne has also lived in Cow Head for his entire life. He confirmed that Mr. Brown picked him up shortly after 8:00 a.m. on September 11, 2017.

He also confirmed that they initially drove north on the main road; and then later turned to drive south down the main road. He recalled that during that ride Mr. Brown said words to the effect of “who’s that up my ass first thing this morning”. This comment caused Craig Payne to look and see a burgundy car behind Mr. Brown’s vehicle. However, Mr. Payne did not notice how close that vehicle was to Mr. Brown’s vehicle. He did not hear the vehicle after they had made the left turn off the main road. [ 36 ] Mr.

Payne confirmed that they turned to go toward the maintenance building; and about 15 or 20 minutes later, he saw the same burgundy vehicle at the accident scene. According to Craig Payne, the accident scene was about two to three hundred meters from where they had turned off. [ 37 ] Like Mr. Brown, Mr. Payne also indicated that there were good driving conditions that morning. Andrew Keough [ 38 ] Mr. Keough lives in St. Paul’s, which is about five to eight kilometers south of Cow Head. On the morning of September 11, 2017, Mr.

Keough was working shingling the roof on a house owned by Terry Payne, which is close to and before the museum when driving south on the main road. His evidence was that Bruce Payne was working with him. [ 39 ] Mr. Keough had arrived at work around 8 o’clock that morning. His evidence was that Justin Hynes’ mother was also going to work with Mr. Keough and Bruce Payne that day. He knew Justin Hynes, who had worked with him on the house the day before. [ 40 ] Mr. Keough’s evidence was that Justin Hynes walked with his mom towards Terry Payne’s house that morning.

Justin Hynes’ mother came to Terry Payne’s house, and Justin Hynes continued walking. Mr. Keough started working, and therefore did not see Justin

Hynes walking after Mr. Hynes left his mother at Terry Payne’s house. He did notice that Justin Hynes was wearing earbuds. [ 41 ] Mr. Keough testified that he did not actually see the Accused’s vehicle strike Justin Hynes. However, while Mr. Keough was on the roof of Terry Payne’s house, he saw the vehicle come up through Cow Head, when it was just before the museum; and then he saw what he described as an “explosion of papers” around the fire hydrant, at the intersection. Mr. Keough did not see the body thrown in the air. Mr. Keough immediately came off the roof, and ran out onto the road to the intersection.

He saw Justin Hynes lying there, with papers all over the road. [ 42 ] His evidence was that the Accused’s car was in the intersection, but it had first driven south 100 or 110 meters further up the main road, and then subsequently backed up. He knew the Accused, and he saw her get out of the vehicle. His evidence was that she looked shocked; however, he had no conversation with her. Mr. Keough called the ambulance and the police. [ 43 ] Mr. Keough suggested in his evidence that the Accused’s vehicle had been operating faster than it should.

His evidence was that when the car came around the turn in the main road, it went out on the shoulder of the road, and over the grass on Ed Sheppard’s property. As stated, Mr. Sheppard’s house is next to the museum, and just before the intersection. However, Mr. Keough clarified that he did not actually see the car go over the grass. Rather, he saw marks on the grass; and he assumed that the marks were made by the Accused’s vehicle. [ 44 ] Like the other witnesses, Mr. Keough confirmed that the weather was good that day. Bruce Payne [ 45 ] Bruce Payne also lives in Cow Head.

He also knew Justin Hynes, and testified that Justin Hynes had previously helped with shingling. [ 46 ] Bruce Payne confirmed that on September 11, 2017 he was shingling a roof at Terry Payne’s house, with Andrew Keough; and that Justin Hynes’ mother was going to be working with them. He recalled seeing Justin Hynes and his mother walking up the main road, towards Terry Payne’s house. His evidence was that they wanted Justin Hynes to help them with their work; and he recalled that Justin Hynes’ mother had asked Justin Hynes that morning to stay and help with the shingling. However, Mr.

Payne also recalled that Justin Hynes decided that he wanted to go to school that day; and Mr. Hynes proceeded on walking south, on the right side of the main road. [ 47 ] The next thing Bruce Payne recalled was hearing the sound of a motor revving up. He heard this while working on the roof of Terry Payne’s house. However, he did not see the Accused’s vehicle when he heard the sound of a motor revving. The noise caused him to look up, as he wanted to see who was going so fast through town. He then saw the Accused’s vehicle drive up by Terry Payne’s house, travelling south.

Bruce Payne indicated that the vehicle looked like it was going really fast. His understanding is that the speed limit on the main road in Cow Head is 50 kilometers per hour. He never noticed any other traffic. [ 48 ] Bruce Payne then observed that after the Accused’s vehicle had passed the house, it veered off to the right side of the main road; where the main road is turning to the left, by the museum. His evidence was that the vehicle went on the gravel shoulder by the museum, but the driver’s side wheels were on the pavement.

He never saw the passenger tires back on the road until after the vehicle had hit Justin Hynes. He was unsure as to where it was that the vehicle eventually got back on the main road. [ 49 ] Like Mr. Keough, Bruce Payne did not actually see the vehicle hit Justin Hynes. After seeing the vehicle veer off to the right shoulder of the road by the museum, he next saw the vehicle hit the museum sign, and the sign flew up in the air. The car was driving towards Justin Hynes; and next he saw what he also described as an “explosion of papers” around the area of the fire hydrant.

His evidence was that Justin Hynes was almost at the Veteran’s Drive intersection, when Bruce Payne saw the car hit the museum sign. His evidence also suggests that the last time he saw Justin Hynes, Mr. Hynes was in proximity to the fire hydrant. Mr. Payne’s evidence was that he never saw the body thrown in the air. [ 50 ] Like Mr. Keough, Bruce Payne quickly came down from the roof, and went to the collision scene. He observed that the Accused’s vehicle was about 100 meters up the main road, south of the intersection.

He saw the reverse lights on and the vehicle started backing up, and stopped around the intersection of Veteran’s Drive and the main road. [ 51 ] Bruce Payne’s evidence was that he did not know the Accused, but she spoke to him at the scene. He recalled that she said she wasn’t going fast; but he responded by saying words to the effect of “yeah, you were flying”. [ 52 ] Like Mr. Keough, Bruce Payne described the scene of the collision as papers being strewn all over the road. Justin Hynes was lying on the side of the road.

Bruce Payne indicated that he could not bring himself to go over to the body. [ 53 ] Bruce Payne also referred in his evidence to tire marks being on the grass in front of the house, near where the museum sign had been hit. He initially suggested in direct examination that the museum sign had been on the grass and gravel, before it was hit. However, he subsequently agreed in cross-examination that his memory was better at the preliminary inquiry, where he had said that the sign was on the gravel.

Ultimately, he was not exactly sure where the sign was before it was hit, except he knew it had been on the side of the road. [ 54 ] Bruce Payne also described the weather as being nice that day. Jody Blanchard [ 55 ] Jody Blanchard is now a grade 8 student; but he was in grade 6 on September 11, 2017. At that time, he lived in Cow Head. [ 56 ] His evidence was that he heard a bang while he was walking on the main road to school on the morning of September 11, 2017. He did not know what the bang was. He looked back to see what was going on, and he saw a burgundy coloured car coming around the

turn by the museum, and coming towards him. The car was about five houses away from him. About a minute later, he saw papers flying around the car. His evidence suggested that the car was by the café at the intersection, when he saw the papers flying. He didn’t know if the car had been going faster than a normal car. His evidence was also that it looked like the car was on the pavement when he saw it hit something, and papers flew up. [ 57 ] Mr. Blanchard testified that he was scared because he saw the car hit something. He ran to a wood pile; and he saw the car stop.

Then he eventually went to a friend’s house and got a ride to school. [ 58 ] His evidence was also that when he looked both ways on his way to school, he saw a person walking down around the turn. When he looked back, after hearing the noise, he didn’t see the person. Portia Bride Payne [ 59 ] Ms. Payne lives in Cow Head. She works as an emergency medical responder with Cow Head’s ambulance service. She was working on September 11, 2017. Her pager went off around 8:30 a.m., following which she responded to the scene of the collision. [ 60 ] Upon arrival at the scene of the collision, Ms.

Payne saw books and papers all over the main road. She observed a damaged red Honda CRV on the main road. She attended to Justin Hynes, whom she described as having his hood up, and lying face down, with a lot of blood around him. She described him as badly beaten; and suggested that he had a head injury. Her evidence was also that Justin Hynes did not have vital signs at the time that Ms. Payne arrived on the scene. [ 61 ] Ms. Payne further recalled that one of the deceased’s sneakers was by the fire hydrant, and the other was underneath the Accused’s vehicle.

She expressed the view that the Accused had been probably underneath, or alongside the vehicle, and dragged; because there was what she described as a string of blood across the intersection up to the body, and some of his clothes were pulled down. However, Ms. Payne is not an expert qualified to assess the manner of collision. [ 62 ] Ms. Payne confirmed that the scene of the collision was at the intersection, which is the turn-off to the fish plant; the fish plant is apparently at the “head of Cow Head”. [ 63 ] Ms. Payne was familiar with the Accused.

She indicated that the Accused rode with her in the ambulance to the hospital. Ms. Payne did not smell alcohol from the Accused. Joshua Gale [ 64 ] Joshua Gale lives in Cow Head. He is a paramedic, and responded to the scene of the collision, along with Portia Payne. Mr. Gale’s evidence was also that the collision took place roughly in front of the intersection between the main road and Veteran’s Drive. [ 65 ] Upon his arrival on the scene, Mr. Gale was greeted by a firefighter who had said that there was a body to the right, and that he had placed a blanket over it. Mr.

Gale went over to assess the body, and determined that there were no vital signs. He noted that there were cuts and abrasions on the deceased. He described the seriousness of the injuries; that the deceased’s head felt soft in areas, and that when they had moved the body, he could hear bone noises which suggested broken bones. [ 66 ] Mr. Gale spoke to the Accused at the scene. He felt that she was cognizant of what had happened, but also emotionally distraught. He asked her how fast she was going; and his evidence was she responded that she believed about 30 kilometers per hour. Gillian Sayer [ 67 ] Ms.

Sayer provided expert testimony. She was deemed qualified as an expert in pharmacology and forensic toxicology; and she was qualified to give opinion evidence with respect to the impairing effects of particular medications. [ 68 ] Ms. Sayer was the expert at the RCMP’s forensic lab who provided a report to Constable Coles, with respect to the Accused’s medical records. Ms. Sayer’s report was entered in evidence. In the report, she provided her expert opinion with respect to the effects of medications listed in the medical records as having been prescribed to the Accused, within the past 12 months.

Specifically, she described the potential effects of the medications on the ability of a person to operate a motor vehicle. The medications she reviewed were, as follows: valproate; lamotrigine; fluoxetine; zopiclone; lorazepam; quetiapine; lansoprazole; olanzapine; clonidine; gabapentin; and alprazolam. [ 69 ] The conclusion by Ms. Sayer in her report was as follows: “The effects of the combination of drugs indicated in this case would have on a person is dependent upon the individual’s tolerance to these drugs, the dose of each drug, and the timing of their administration in relation to each other.

It can be expected, however, that the combination use of multiple drugs that depress the function of the CNS would result in greater impairment of mental and/or physical processes that would be expected following their individual use.” [ 70 ] Although numerous drugs were listed in the medical records as having been prescribed to the Accused, the hospital analysis in the medical records identified only one drug in the Accused’s system on the date of the collision; which was the drug valproate. Indeed, Ms.

Sayer acknowledged that she was unaware as to whether or not the Accused had taken any of the other medications which had been listed in the medical reports. As a result, Ms. Sayer’s above referenced conclusion was of limited relevance. [ 71 ] With respect to the reported concentration of valproate in the Accused’s hospital analysis, Ms. Sayer stated in her report, as follows: VALPROATE (Teva-Divalproex®) is a prescription anticonvulsant drug used for the treatment of seizure disorders and/or for the treatment of manic episodes associated with bipolar disorder. The following

interpretation is based on the assumption that the sample

tested in hospital (Spec # 1109:CH00628S) was a sample of serum from Ms. Blanchard. The concentration of valproate detected by hospital analysis (872 µmol/L) is above a commonly cited therapeutic range for valproate in serum (347-693 µmol/L) e.g., 1 . Other references available in the scientific literature use a therapeutic range of up to 867 µmol/L 2 . While most individuals taking valproate achieve optimal control of their condition at a serum valproate concentration of between 347 µmol/L and 693 µmol/L, some people require higher serum concentrations in order to achieve adequate therapeutic efficacy.

In a study of 20 patients using valproate for seizure control, serum concentrations of up to 1317 µmol/L were detected without report of any adverse effects within this group 3 . Although dose of valproate used and frequency of adverse effects are poorly correlated, side effects including nausea, tremors, and sedation are more common among individuals with serum concentrations of greater than 868 µmol/L 4 .

Individuals using valproate for seizure control have demonstrated deficiencies in short term memory and motor control (as compared to healthy individuals) that could negatively impact the ability to operate a motor vehicle 5, 6 . The degree of impairment that can be expected for a given individual is likely to depend on the dose of valproate used and the tolerance of the individual to the drug. Tolerance refers to a diminished response to a drug over time following repeated use. [ 72 ] As stated above, the hospital analysis showed that the Accused had a valproate concentration of 872 µmol/L per liter. While Ms.

Sayer confirmed that this concentration was much above the commonly cited therapeutic range of 347-363 µmol/L, she also referenced other scientific literature which indicated that the therapeutic range was up to 867 µmol/L. In addition, she cited one other study in which 20 patients using valproate with concentrations of up to 1317 µmol/L did not report any adverse effects. [ 73 ] Ms.

Sayer was of the view that a valproate concentrate of 872 µmol/L may be above the general therapeutic range; however, she was also of the view that whether an individual experienced adverse effects at that level could not be guaranteed. Such depended on individual factors such as tolerance, dose, and the time when the medication was taken. [ 74 ] Further, Ms. Sayer confirmed that the valproate absorption peak is within a period of one to three hours.

On this point, she was referred to the hospital notes which indicated that the Accused’s dose of the valproate was taken at approximately 8:00 a.m. on the morning of the collision, whereas the blood test was at 12:34 p.m. the same day. Ms. Sayer confirmed that it was possible that at 12:34 p.m. the concentration of valproate in the Accused’s blood would have been either approaching, or past, the maximum peak. Further on this point, Ms. Sayer was asked in cross-examination what the absorption of valproate would have been after 20 minutes.

All she could confirm was that the absorption of the valproate would have then been rising, but she could not predict the concentration level at that point in time. [ 75 ] Ms. Sayer confirmed that all she really could conclude was that the blood chemistry reading for the Accused at the time of analysis was above the commonly cited therapeutic range; but it also fell within other therapeutic ranges from other studies. She therefore could not say that the Accused experienced any adverse effects from the valproate she had taken.

All she could say was that the possibility of adverse effects from the valproate is higher when levels of valproate are higher than the commonly cited therapeutic range. [ 76 ] Based on the whole of Ms. Sayer’s evidence, I conclude that there is insufficient evidence to determine whether there were any adverse effects on the Accused’s driving caused by the levels of valproate in the Accused’s system at the time of the collision. In other words, I find Ms. Sayer’s evidence inconclusive with respect to the question of impairment. Ross Watkins [ 77 ] Mr. Watkins testified as the Crown’s second expert.

He was qualified as a licensed automotive mechanic, and he was deemed qualified to give expert opinion evidence in the area of the operation and functionality of motor vehicles, particularly mechanical aspects. [ 78 ] Mr. Watkins had conducted the inspection for the RCMP of the Accused’s vehicle, following the collision. According to his evidence and his inspection report, he concluded that the vehicle had no problems. Specifically, he concluded that the vehicle was in good condition at the time of the collision, with no mechanical or operational issues which would make it difficult to drive.

He did not take the vehicle for a test drive, however, because the windshield was broken. [ 79 ] Mr. Watkins did not check to see if there had been any recalls on the Accused’s vehicle. Defence Counsel put to Mr. Watkins that there had been a Transport Canada safety recall of the Honda CRV with respect to rear frame stiffener corrosion. Mr. Watkins’ evidence suggested that if that defect was in a vehicle, then a driver could lose control of a car. However, his evidence was also that if there was such a defect in the Accused’s vehicle, then he would have seen it in the course of his inspection. Further, Mr.

Watkins described what he did in the course of inspecting the Accused’s vehicle; and he suggested that even though the vehicle may have been subject to a recall, there was nothing wrong with the car’s rear trail arms, and that he would have noticed if there was excessive corrosion, or any other problem associated with the recall. [ 80 ] Based on the whole of Mr. Watkins’ expert evidence, I find that there is no evidence of any mechanical issues with the Accused’s vehicle, which may have caused or contributed to the collision. Sergeant Oliver Whiffen

[ 81 ] Sergeant Oliver Whiffen is an RCMP officer. Following a voir dire at trial, he was found to be qualified as a collision investigation expert and a collision reconstructionist. He was found qualified to give expert opinion evidence with respect to collision investigation including scene diagraming, data collection and reconstruction, particularly pedestrian/vehicle collisions. [ 82 ] Sergeant Whiffen testified that on September 11, 2017, at about 8:30 a.m., he received a call requesting that he attend the scene of the collision.

He was working at the Clarenville detachment, and it took him about seven hours to get to the scene. Upon arrival, he spoke to the officers at the scene who had secured the area; and he then proceeded to process and investigate the scene. [ 83 ] In addition to his testimony, Sergeant Whiffen provided his collision reconstruction report. The report detailed his observations of the scene, his observations regarding the vehicle, his objectives, the methodology he used, his analysis and

interpretation, and his conclusions. He also used a computer program referred to as ARAS program, to prepare a 3D animation video which was entered in evidence. It depicted the collision in accordance with Sergeant Whiffen’s assessment and evaluation of the information he had collected. [ 84 ] In Sergeant Whiffen’s evidence and report, he indicated that there were no tire marks on the road which could be used for the purposes of a speed calculation. Further, the Accused’s vehicle did not have the software which would permit the airbag control module to be analyzed for speed.

He also noted that as per the mechanical inspection conducted by Ross Watkins, there were no mechanical issues that would have contributed to the collision. He further observed that the damage to the vehicle was significant, and around the centre of the front grill, hood and windshield. [ 85 ] With respect to the area of impact, Sergeant Whiffen stated at page six of his report that during a “pedestrian-vehicle collision it is common for personal items to remain in the area of impact”. He observed the deceased’s running shoe was located on the roadside, near the fire hydrant.

The other running shoe was depicted in the photos as being underneath the Accused’s vehicle; yet Sergeant Whiffen chose the shoe which was in proximity to the fire hydrant as one of the indicators for determining the area of impact. This was due, in part, to his observation of paint flakes also on the ground in proximity to the fire hydrant. [ 86 ] More specifically, the hood of the vehicle showed an area where paint was no longer on the hood. Sergeant Whiffen’s opinion was that upon impact, paint was knocked from the hood of the Accused’s vehicle, and landed on the ground where the collision had occurred.

Based on this and other observations, Sergeant Whiffen determined that the area of impact was in proximity to the fire hydrant. However, he acknowledged there had been no testing of the paint flakes to confirm that they were from the Accused’s vehicle. [ 87 ] Further, while there were no pre-collision tire marks on the road from which speed could be calculated, he observed that there were other tire marks present which could establish a pre-collision and post-collision path of travel.

That information also assisted him in determining the area of impact. [ 88 ] In Sergeant Whiffen’s opinion, his observation and assessment of tire tracks on the scene suggested that the driver tried to negotiate the left hand turn on the main road, and in the process of doing so the right wheels of the vehicle went up on the grass until the vehicle found its way back to the road. More specifically, his evidence was that tire marks were visible on the southbound shoulder of the road.

Further, according to Sergeant Whiffen, at times the right and left side tires were on the gravel shoulder; and the vehicle moved right onto the grass of a lawn, before moving back to the left. [ 89 ] In cross-examination, Sergeant Whiffen agreed that there had been no testing done of these tire tracks on the side of the road to ascertain if they matched the tires on the Accused’s vehicle.

However, based on his experience, the tires on the Accused’s vehicle, and where the Accused’s vehicle ended at rest, it was his view that the tire tracks depicted as going up on the grass, and on the side of the road, belonged to the Accused’s vehicle. His evidence was also that these tire tracks led up to about where the vehicle was parked at the scene.

He was aware that the vehicle had been moved back before it stopped; however, he was not aware it had moved back as much as over 100 meters before stopping. [ 90 ] Sergeant Whiffen’s opinion evidence was that the abrasion on the back of the deceased’s right knee (as shown in the photos) was caused by the bumper of the Accused’s car. In his view, the bumper was the leading edge of the vehicle, which is the first point of contact. The deceased was struck by the front centre of the vehicle; and in his view, the windshield was broken by the back of the head of the deceased.

Further, in his report, he noted as well that the injuries sustained by Mr. Hynes, including the back of the knees and the back of the head, were consistent with his being struck while walking away from the traffic flow. [ 91 ] In cross-examination, Sergeant Whiffen was asked whether it was possible that the broken windshield was the result of the museum sign hitting off the windshield.

He did not think so as it was his evidence that the break pattern on the windshield was typical of the star pattern associated with an individual hitting his head on the windshield. [ 92 ] Sergeant Whiffen’s opinion was also that the nature of the collision was a “wrap trajectory” collision, such that Justin Hynes was hit from behind, his body went up on the hood, his head hit the windshield, his body was then projected in the air to the ground, and his body then slid several meters to his final place of rest on the road.

Sergeant Whiffen’s analysis indicated that the distance between the point of impact to the place on the road where Mr. Hynes’ body first hit the ground was 8.30 meters. He determined this based on his examination of the roadway at the intersection, the photos of which depict that the gravel may have been disturbed, and that there appeared to be blood on the ground. [ 93 ] Based on Sergeant Whiffen’s assessment of the nature of the collision, the area of impact was an important determination for the purposes of his analysis of speed.

The distance from the point of impact, to the final resting place of Justin Hynes’ body, was measured by Sergeant Whiffen as being 36.90 meters. That distance was referred to as the “throw distance”. The throw distance was data collected by Sergeant Whiffen, which he ultimately plugged into a formula called the Searle formula to determine a minimum and maximum speed of the Accused’s vehicle at the point of impact. The Searle formula uses constant values for the co-efficient of friction, and the acceleration due to gravity.

The variable used in the equation is the throw distance. [ 94 ] Similarly, the throw distance was used by Sergeant Whiffen to determine a speed under a second formula, called the Collins formula. The Collins formula also uses constant values for the co-efficient of friction and acceleration due to gravity; although it uses a different co-efficient of friction than the Searle formula. The variables used are the throw distance and the pedestrian centre of mass

height. [95] Sergeant Whiffen’s evidence was limited regarding the reliability of the formulas. Both formulas were described by him ashaving been developed through testing. Further, in Sergeant Whiffen’s training with mannequins, he observed that these formulas wereconsistently accurate. He described the Collins formula as giving a more accurate speed. [96] Based on Sergeant Whiffen’s analysis, the Searle formula calculations suggested that the minimum speed at which the Accusedwas driving at the point of impact was 65 kilometers per hour, and the maximum speed was 78 kilometers per hour.

Similarly, the throwdistance was input into the Collins formula, along with the deceased’s centre of mass height, and that calculation suggested a speed of 74kilometers per hour. [97] In cross-examination, Sergeant Whiffen acknowledged that if there was a variation of a meter in his measurement of the throwdistance, then that would possibly impact the ultimate calculation, and speed assessment. [98] Sergeant Whiffen ultimately used the data he had collected to create ARAS animations, which depicted his view on what hadoccurred in the collision. The animations depict a vehicle driving south on the main road.

After trying to negotiate the left turn on themain road, the vehicle drives onto the shoulder of the road in the area of the museum, then goes up on the grass of the adjacent property,then by the fire hydrant where the vehicle hits a person, who is back on and on the shoulder of the road; and the vehicle then drives onthe road. The body is thrown from the collision, and then slides along the road. [99] Sergeant Whiffen acknowledged that in the animation video, the body appeared to be sliding head first and straight forward;however, the deceased’s body was actually found more at an angle towards the road.

He explained this depiction as a limitation in thesoftware, and explained that a body may not travel perfectly straight across asphalt. He opined that was typical, based upon the fact thatbodies can roll when moving in a trajectory. [100] Sergeant Whiffen was aware that the Accused’s vehicle had hit a sign before the collision had occurred. However, this is notshown in the animation. Defence Counsel put to Sergeant Whiffen that the evidence was that the sign was on the gravel, but that theanimation does not depict the car as possibly having hit the sign.

Sergeant Whiffen’s response was that the witnesses could be wrong asto where they determined the sign was located. His evidence was the sign could have been given a glancing blow. [101] As part of his analysis, Sergeant Whiffen also determined the critical curve speed of the left turn on the main road in Cow Head;the point of impact occurred after the left bend in the road. Sergeant Whiffen explained that the critical curve speed is the speed at whichif exceeded, a vehicle cannot stay on the road. It is based upon calculations including radius, acceleration due to gravity and the co-efficient of friction.

In his analysis, he calculated that speed as 99 kilometers per hour for the left turn on the main road. In essence, anydriver going above 99 kilometers per hour around the curve would go off the main road, unless they had special driver training. Heacknowledged that speed was not the only reason a vehicle could go off the road. For example, impairment or inattention could alsocause a vehicle to be driven off the road. [102] His evidence was that the posted speed limit for the main road was 50 kilometers per hour.

That was posted approximately oneand a half kilometers north of the crash scene. [103] In his collision reconstruction report, Sergeant Whiffen’s conclusions were summarized as follows, at page 16: Based on the information available to me at this time, and as outlined in this report, it is my opinion that: 1. The area of impact was on the gravel shoulder of the westbound lane. 2. Prior to the impact with P1, V1 was travelling westbound, it failed to negotiate a left hand turn. It moved to the right,onto the gravel shoulder and a lawn before steering back to the left to return to the asphalt. 3.

A range was obtained using the Searle formula of a low of 65 km/h or a high of 78 km/h. The Collins formula provided aspeed calculation of 74 km/h. These are speeds at impact with P1. The speeds would have been higher when V1 lost control. 4. The critical curve speed for the left-hand turn prior to the point of impact was calculated as 99 km/h. [104] In cross-examination, Sergeant Whiffen was asked his views on whether Justin Hynes had been dragged, rather than thrown at thescene.

His opinion was that based on the evidence at the scene, Justin Hynes was not dragged. [105] Sergeant Whiffen was asked by Defence Counsel about the notebook which the photos show remained on the windshield, afterthe vehicle had stopped. Specifically, Defence Counsel asked whether the notebook was more likely to have stayed on the windshield, ifit was a low speed collision where a body was being dragged, as opposed to a higher speed collision. Sergeant Whiffen agreed that waspossibly correct. Nevertheless, he maintained that he did not believe that the body was dragged.

ANALYSIS [106] The Crown bears the onus of establishing beyond a reasonable doubt that the Accused committed the offence of dangerousoperation of a motor vehicle causing death, pursuant to section 249(4) of the Code. [107] The standard of “beyond a reasonable doubt” was described by the Supreme Court of Canada in R. v. Lifchus, (SCC), [1997] 3 S.C.R. 320, where they stated at paragraph 36, as follows:

36 Perhaps a brief

summary of what the definition should and should not contain may be helpful.

It should be explained that: • the standard of proof beyond a reasonable doubt is inextricably intertwined with that principle fundamental to all criminal trials, the presumption of innocence; • the burden of proof rests on the prosecution throughout the trial and never shifts to the accused; • a reasonable doubt is not a doubt based upon sympathy or prejudice; • rather, it is based upon reason and common sense • it is logically connected to the evidence or absence of evidence; • it does not involve proof to an absolute certainty; it is not proof beyond any doubt nor is it an imaginary or frivolous doubt; and • more is required than proof that the accused is probably guilty — a jury which concludes only that the accused is probably guilty must acquit. [ 108 ] In R. v.

Starr , 2000 SCC 40 , the Supreme Court of Canada described the reasonable doubt standard as falling “much closer to absolute certainty than to proof on a balance of probabilities”. [ 109 ] In this case, the Crown must therefore establish beyond a reasonable doubt the components of the offence of dangerous driving causing death. [ 110 ] At paragraph 1 of R. v. Roy , 2012 SCC 26 , the Supreme Court of Canada described the prohibited conduct and fault components of the offence, as follows: 1 Dangerous driving causing death is a serious criminal offence punishable by up to 14 years in prison.

Like all criminal offences, it consists of two components: prohibited conduct — operating a motor vehicle in a dangerous manner resulting in death — and a required degree of fault — a marked departure from the standard of care that a reasonable person would observe in all the circumstances. The fault component is critical, as it ensures that criminal punishment is only imposed on those deserving the stigma of a criminal conviction.

While a mere departure from the standard of care justifies imposing civil liability, only a marked departure justifies the fault requirement for this serious criminal offence. [ 111 ] The Supreme Court of Canada indicated that due to the “inherently dangerous nature of driving”, it is challenging to define and apply the fault component of the offence (paragraph 2 of R. v. Roy ). At paragraph 28 of R. v. Roy , the Supreme Court of Canada confirmed that the actus reus and the mens rea of the offence are as they were defined in R. v. Beatty , 2008 SCC 5 .

They stated, as follows: 28 In Beatty , the majority of the Court spoke through the reasons of Charron J. which of course are the authoritative statement of the relevant principles. In brief, the Court decided as follows. The actus reus of the offence is driving in a manner dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle was being operated and the amount of traffic that at the time was or might reasonably have been expected to be at that place ( s. 249(1) (

a) of the Criminal Code ). The mens rea is that the degree of care exercised by the accused's was a marked departure from the standard of care that a reasonable person would observe in the accused's circumstances ( Beatty , at para. 43 ). The care exhibited by the accused is assessed against the standard of care expected of a reasonably prudent driver in the circumstances. The offence will only be made out if the care exhibited by the accused constitutes a marked departure from that norm.

While the distinction between a mere departure from the standard of care, which would justify civil liability, and a marked departure justifying criminal punishment is a matter of degree, the lack of care must be serious enough to merit punishment (para. 48). [ 112 ] The Supreme Court of Canada in R. v. Roy instructs that with respect to the actus reus of the offence, there must be a meaningful inquiry into the manner of driving. However, the focus of analysis is not to be on the consequences of the accused’s manner of driving; rather, it is to be on the risks created by the accused’s manner of driving.

At paragraph 34 of R. v. Roy , the Supreme Court of Canada stated this, as follows: 34 In considering whether the actus reus has been established, the question is whether the driving, viewed objectively, was dangerous to the public in all of the circumstances. The focus of this inquiry must be on the risks created by the accused's manner of driving, not the consequences, such as an accident in which he or she was involved. As Charron J. put it, at para. 46 of Beatty , "The court must not leap to its conclusion about the manner of driving based on the consequence.

There must be a meaningful inquiry into the manner of driving " (emphasis added). A manner of driving can rightly be qualified as dangerous when it endangers the public. It is the risk of damage or injury created by the manner of driving that is relevant, not the consequences of a subsequent accident. In conducting

this inquiry into the manner of driving, it must be borne in mind that driving is an inherently dangerous activity, but one that is both legal and of social value ( Beatty , at paras. 31 and 34 ). Accidents caused by these inherent risks materializing should generally not result in criminal convictions. [ 113 ] With respect to the mens rea of the offence, at paragraph 36 of R. v.

Roy , the Supreme Court of Canada suggested approaching the mens rea analysis by asking two questions, as follows: 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. [ 114 ] Further, the Supreme Court of Canada indicated that the fault requirement of a “marked departure from the standard expected of a reasonable person in the same circumstances” is a “modified objective standard” (at paragraph 38 of R. v. Roy ). [ 115 ] At paragraph 39 of R. v.

Roy , the Supreme Court of Canada stated that proof of the mens rea of the offence requires the trial judge to examine all the evidence, “including any evidence of the accused’s state of mind”. Further at paragraphs 40 to 42, the Supreme Court of Canada stated, as follows: 40 Generally, the existence of the required objective mens rea may be inferred from the fact that the accused drove in a manner that constituted a marked departure from the norm.

However, even where the manner of driving is a marked departure from normal driving, the trier of fact must examine all of the circumstances to determine whether it is appropriate to draw the inference of fault from the manner of driving. The evidence may raise a doubt about whether, in the particular case, it is appropriate to draw the inference of a marked departure from the standard of care from the manner of driving.

The underlying premise for finding fault based on objectively dangerous conduct that constitutes a marked departure from the norm is that a reasonable person in the position of the accused would have been aware of the risk posed by the manner of driving and would not have undertaken the activity: Beatty , at para. 37 . 41 In other words, the question is whether the manner of driving which is a marked departure from the norm viewed in all of the circumstances, supports the inference that the driving was the result of a marked departure from the standard of care that a reasonable person in the same circumstances would have exhibited. 42 Driving which, objectively viewed, is simply dangerous, will not on its own support the inference that the accused departed markedly from the standard of care of a reasonable person in the circumstances (Charron J., at para. 49; see also McLachlin C.J., at para. 66, and Fish J., at para. 88).

In other words, proof of the actus reus of the offence, without more, does not support a reasonable inference that the required fault element was present. Only driving that constitutes a marked departure from the norm may reasonably support that inference. [ 116 ] Further, at paragraph 37 of R. v. Roy , the Supreme Court of Canada stated (again in reference to Beatty ) that simple carelessness, which may include momentary lapses of attention, will in some circumstances invite civil liability, but not criminal liability. They stated this at paragraph 37 in R. v.

Roy , as follows: 37 Simple carelessness, to which even the most prudent drivers may occasionally succumb, is generally not criminal. As noted earlier, Charron J., for the majority in Beatty , put it this way: "If every departure from the civil norm is to be criminalized, regardless of the degree, we risk casting the net too widely and branding as criminals persons who are in reality not morally blameworthy" (para. 34). The Chief Justice expressed a similar view: "Even good drivers are occasionally subject to momentary lapses of attention.

These may, depending on the circumstances, give rise to civil liability, or to a conviction for careless driving. But they generally will not rise to the level of a marked departure required for a conviction for dangerous driving" (para. 71). [ 117 ] In this matter, Crown Counsel submitted that considering all the circumstances, the elements of the offence have been established beyond a reasonable doubt.

The Crown submitted that the evidence supports a finding of a continuous pattern of extremely careless driving by the Accused that morning, which was a “marked departure” from the standard of care which a reasonable person, under the same circumstances, would have exercised. [ 118 ] By contrast, Defence Counsel maintained that the offence has not been proven beyond a reasonable doubt. Defence Counsel submitted that the Accused’s driving was not a “marked departure” from the required standard of care.

Her actions amount to inadvertence, or carelessness; but her actions were not criminal in nature. [ 119 ] Before determining whether the Crown has established beyond a reasonable doubt the elements of the offence, the whole of the evidence must be considered for the purposes of first inquiring into the manner of driving, as instructed by R. v.

Roy , at paragraph 34 . [ 120 ] To begin with, the evidence is that on the morning of September 11, 2017, the Accused drove her vehicle on the main road in Cow Head in a southerly direction; and that she was driving to work at the fish plant, which is apparently located in what was referred to as the “head of Cow Head”.

It was established in the evidence that in order for the Accused to get to the fish plant, she could make a right turn off the main road, at the intersection of the main road with Veteran’s Drive. [ 121 ] The evidence established by witness testimony is that the speed limit on the main road through the community of Cow Head is 50 kilometers per hour. As stated, when travelling in a southerly direction on the main road, the road turns left before and when approaching the museum. Based on the evidence, the left turn appears to be not necessarily a sharp turn, but it is a significant turn. The

museum is on the right hand side of the main road when travelling south; the Sheppard house is then next to the museum, just before coming to the intersection of the main road with Veteran’s Drive. The fire hydrant is in front of the Sheppard property, close to the corner of the intersection, and close to the street sign for Veteran’s Drive.

There are gravel shoulders on the sides of the main road; there is grass after the shoulders; and houses line the portion of the main road in the area where the collision took place. [ 122 ] The evidence established that there is pedestrian traffic in the residential area where the collision occurred. Indeed, Justin Hynes was walking to school that morning. He was walking on the right hand side of the road, with his back to the traffic. He may have been walking on the shoulder of the road; but as submitted by Defence Counsel, the witnesses present at the time of the collision did not say whether Mr.

Hynes was walking on the shoulder. [ 123 ] With respect to the Accused’s manner of driving, Crown Counsel suggested that the Court should consider not only the fact of the collision, but also the evidence pertaining to the Accused’s manner of driving prior to the collision occurring. On this, the Crown first pointed to the evidence of Mr. Chatman. Mr. Chatman’s evidence was that he had observed the Accused’s vehicle veer off onto the narrow shoulder of the road while the Accused was driving south on the highway towards Cow Head, from Parson’s Pond.

He also saw her correct the path of her vehicle; and his evidence suggests that the Accused was not speeding. This occurred after 8:00 a.m., possibly after 8:10 a.m., on September 11, 2017. I accept Mr. Chatman’s credible and reliable evidence. [ 124 ] The Crown submitted that Mr. Chatman’s evidence should be considered as the first part of the continuum of a pattern of careless driving displayed by the Accused that morning. The Defence submitted that what Mr.

Chatman saw amounted to mere carelessness, suggesting that the Accused simply did not negotiate a turn in the highway. [ 125 ] I agree with the Defence Counsel’s submission that the incident observed by Mr. Chatman is, in itself, merely an incident of carelessness, but not of dangerous driving. Further, it is a very minor incident; during which the Accused was not speeding. [ 126 ] The second incident referenced by the Crown was that of the Accused driving close to Calvin Brown’s vehicle on the main road. This followed the incident described by Mr. Chatman.

This second incident was described in Calvin Brown’s evidence as occurring on the main road after 8:00 a.m. on September 11, 2017. Mr. Brown and Craig Payne were credible, and reliable witnesses. I accept their evidence, and infer that it was indeed the Accused’s vehicle which followed close behind Mr. Brown’s vehicle, when driving on the main road. This was shortly after Mr.

Brown pulled onto the main road, and continued until he turned left toward the town maintenance shop; after driving a distance of about 500 meters. [ 127 ] With respect to this incident, and based on the evidence, I cannot reasonably infer that the Accused was speeding when her vehicle first caught up with Mr. Brown’s vehicle on the main road. There was insufficient evidence of the time frame from when Mr.

Brown first saw the Accused’s vehicle (which was before he pulled off from the shoulder, and onto the main road), to when he observed that her vehicle had first caught up to his. [ 128 ] Further, based on the evidence, I also find that Mr. Brown did not exceed the speed limit while he was driving toward the turn off leading to the town maintenance shop; therefore, the Accused’s vehicle, while travelling behind Mr. Brown’s vehicle, also did not exceed the speed limit. Further, although I accept that the Accused was travelling close to Mr. Brown’s vehicle, I find that she was not travelling too close.

I conclude this based on the evidence that she kept her vehicle far enough from Mr. Brown’s to be able to slow, or practically stop, when Mr. Brown’s vehicle slowed, or practically stopped, before turning left. Consequently, I do not find this to be an incident of careless driving. [ 129 ] After Mr. Brown turned left, he heard the Accused’s vehicle accelerate. He assumed that the Accused had taken off fast because he heard the sound of acceleration; however, he did not actually see her car take off fast. Rather, his assumption was solely based upon the sound of the engine.

Craig Payne did not hear the Accused’s car accelerate after Mr. Brown’s vehicle turned left. However, Bruce Payne also reported hearing a vehicle revving; this caused him to look up from his work and he subsequently saw the Accused’s vehicle veer off the right side of the main road, and hit the museum sign. [ 130 ] Based on the evidence, I find that the Accused did indeed accelerate her vehicle after Calvin Brown turned left.

However, as submitted by Defence Counsel, although witnesses heard the Accused’s vehicle accelerate, such does not establish that the Accused was speeding; rather, it is an indication of how fast the Accused accelerated her vehicle. [ 131 ] Shortly after the Accused accelerated her vehicle away from where Mr. Brown had turned left, the Accused’s vehicle fatally struck Justin Hynes. This occurred at some time after 8:00 a.m., and before 8:30 a.m. Nobody testified that they actually saw the Accused’s vehicle collide with Justin Hynes.

However, I find that the evidence established that the collision occurred in the vicinity of the intersection of Veteran’s Drive and the main road, and in proximity to the fire hydrant. The weather was good at the time; and therefore driving conditions were good. [ 132 ] According to the evidence, the intersection is only a short distance from where Calvin Brown turned left off the main road. Calvin Brown estimated the distance between the intersection and the turn-off as two or three hundred meters, plus a couple of hundred feet.

Craig Payne estimated the distance as two or three hundred meters. [ 133 ] At the time of the collision, Andrew Keough and Bruce Payne were both shingling the roof on Terry Payne’s house, which is before the museum, when travelling south. It is also close to the museum, and on the same side of the main road. As stated, after the museum is Ed Sheppard’s house; and in front of Mr. Sheppard’s house, and close to the corner of the intersection of Veteran’s Drive with the main road, is the red fire hydrant on the grass. With respect to the collision, Mr. Keough and Mr.

Payne both saw what they each described as an “explosion of papers” around that fire hydrant. [ 134 ] More specifically, according to Andrew Keough’s evidence, he saw the Accused’s vehicle on the main road, approaching the museum. Next, he saw that “explosion of papers”. [ 135 ] Neither Mr. Keough, nor Mr. Payne, saw the Accused’s vehicle strike Justin Hynes. Further, they both made assumptions about the path of travel of the Accused’s car based upon tire tracks in front of Ed Sheppard’s house. Indeed, Mr. Keough initially suggested

that the Accused’s car was driving faster than it should; because when the vehicle came around the turn, it went on the gravel shoulder, and then upon the grass in front of Ed Sheppard’s house. However, Mr. Keough subsequently clarified in his evidence that he merely assumed that the car went across the grass, because there were tracks in the grass. He further clarified that he did not actually see the vehicle travel off the shoulder of the road. [ 136 ] By contrast, Bruce Payne saw much more than Andrew Keough. Bruce Payne was a compelling witness. To recap, Mr. Payne heard the Accused’s vehicle revving up.

This caught his attention, and caused him to look up from his work to see who was driving so fast through town. He clarified in his evidence that he could not see the vehicle when it was accelerating; but that when he did see the Accused’s vehicle, it appeared to be driving fast. He saw the Accused’s vehicle drive past Terry Payne’s house travelling south, he saw the Accused’s vehicle veer off to the right side of the road onto the gravel, and then the vehicle hit the museum sign.

According to his evidence, the museum sign flew up in the air. [ 137 ] Bruce Payne’s evidence was that before the Accused’s vehicle hit the sign, the sign had been on the gravel on the side of the road; but Bruce Payne was unable to describe exactly where the museum sign had been before it was hit by the Accused’s vehicle. There was no other evidence at trial pinpointing precisely where the sign actually had been before it was struck; except it can be reasonably inferred it was in proximity to the museum, on the side of the road. After Mr.

Payne saw the Accused’s vehicle hit the sign, he saw the car go towards Justin Hynes, and the next thing he saw was an explosion of papers around the fire hydrant. The last time he saw Justin Hynes was when Mr. Hynes was almost at the intersection of Veteran’s Drive and the main road. Bruce Payne thought that the vehicle started to correct its path on the road, after Mr. Hynes was hit. [ 138 ] Neither Mr. Keough, nor Mr. Payne, saw Justin Hynes’ body thrown in the air. After seeing the explosion of papers, they quickly descended from Terry Payne’s roof, and went to the scene of the collision.

At the scene, they both saw the Accused’s vehicle about 100 meters from the intersection. They saw the Accused’s vehicle then back up to the intersection. They also both observed Justin Hynes lying on the side of the road. [ 139 ] I find the evidence of Mr. Keough and Mr. Payne to be credible and reliable. Inconsistencies were minor, and the witnesses readily clarified in cross-examination what they saw, as opposed to what they believed or had assumed.

Further, I agree with the Crown’s submission that the credibility and reliability of the evidence of Andrew Keough and Bruce Payne was not impacted by their both using the term “explosion of papers”. The charge was not laid against the Accused until three months after the incident. Mr. Keough and Mr.

Payne likely may have talked to each other about the incident, but I see no reason to make a finding of any inappropriate communication, or collusion, in this regard. [ 140 ] I note as well that Jody Blanchard also referred to papers flying everywhere; although he saw the papers flying around the car by the café at the intersection. The car was on the pavement when he saw it; and his evidence was that it looked like the car was on the pavement when he saw it hit something. [ 141 ] Mr. Blanchard’s evidence was at times confusing, but this did not impact his overall credibility.

His evidence seems to suggest that the Accused’s car was on the road at the point of impact. Bruce Payne’s evidence suggests otherwise; although Mr. Payne did not actually see the Accused’s vehicle strike Justin Hynes. Nevertheless, I prefer the compelling and reliable evidence of Bruce Payne. I accept Mr. Payne’s account of what happened. [ 142 ] More specifically, based on the evidence I find that prior to the collision, the Accused’s vehicle veered off the main road, and onto the gravel shoulder of the road, by the museum.

Because the Accused’s vehicle veered off the road, her car hit the museum sign; and then hit Justin Hynes while the vehicle was still, in part, on the shoulder of the road. [ 143 ] I also find the evidence of Andrew Keough, Bruce Payne and Jody Blanchard to be inconclusive with respect to the question of whether the Accused was speeding at the time of the collision. A finding of speeding cannot be made based on evidence that the Accused’s vehicle simply appeared to be going fast. Further, the evidence did not establish that the Accused was speeding when Mr.

Chatman saw her driving; nor did the evidence establish that the Accused was speeding when she was driving behind Mr. Brown’s vehicle. Consequently, the evidence of Sergeant Whiffen must be considered to further assess the Accused’s manner of driving, and to determine whether the Crown has established that the Accused’s vehicle was speeding at the time it struck Justin Hynes. [ 144 ] I have carefully reviewed the whole of Sergeant Whiffen’s evidence, and have considered it in light of the totality of the evidence adduced at trial.

I accepted Sergeant Whiffen as an expert in the area of collision reconstruction and collision investigation. However, I agree with Defence Counsel’s suggestion that while there was no problem with Sergeant Whiffen’s calculations, the Court cannot reasonably rely on the assumptions Sergeant Whiffen made respecting the data input by him into the speed calculations.

As a result, in my view, there was insufficient evidence to allow the Court to rely upon and accept his conclusions regarding the speed of the Accused’s vehicle, at the time of the collision. [ 145 ] To elaborate, Sergeant Whiffen used the Searle formula and the Collins formula to calculate speed. There was limited evidence on the reliability of these formulas.

Nevertheless, I accept them as a method of calculating speed in certain types of pedestrian/vehicle collisions, and for the purpose of assessing Sergeant Whiffen’s evidence. [ 146 ] Both formulas require that the throw distance be inputted to calculate speed. The Collins formula also inputs the pedestrian’s centre of mass height. As explained by Sergeant Whiffen, the throw distance is the distance from the point of impact, to the point of final rest of the pedestrian.

In my view, it can be inferred from the formulas that the greater the throw distance input into each formula, the greater the finding with respect to speed. It is therefore important that the throw distance be a reliable determination. However, as suggested by Defence Counsel, assumptions made by Sergeant Whiffen were not sufficiently substantiated by the facts in evidence. Further, some of his assumptions were outside of his area of expertise. [ 147 ] To begin with, the location of the point of impact appears to have been roughly estimated by Sergeant Whiffen.

Sergeant Whiffen determined the point of impact where the collision occurred, based on the location of one of the deceased’s sneakers, the presence of flakes of paint, the path of the tire marks, and the damage to the car. He determined the point of impact to be almost by the fire hydrant, on the gravel shoulder. The deceased’s sneaker was in proximity to the fire hydrant, as were the paint flakes.

[ 148 ] Nevertheless, as submitted by Defence Counsel, the paint flakes were not subject to any type of testing to confirm that they were actually the paint flakes from the Accused’s vehicle; although they appeared to be the same colour, and the vehicle is depicted as having paint missing on the hood. Further, it was unclear as to whether there were paint flakes elsewhere on the scene; or indeed if the paint flakes had been blown around.

On this latter point, the evidence was that Sergeant Whiffen arrived on the scene seven hours after the collision; and there was evidence from Constable Barter that there was a slight breeze that day.

Based on these concerns, I have difficulty accepting Sergeant Whiffen’s assumption that the paint flakes are a reliable indicator of the point of impact; or that they can be considered with other items for the purposes of a speed calculation. [ 149 ] Further on this point, Sergeant Whiffen’s evidence was that the path of travel of the vehicle, as depicted by tire marks on the shoulder of the road, also supported his finding as to the area of impact. He believed that the tire marks belonged to the Accused’s vehicle.

He also suggested in his evidence that he knew these tire marks on the gravel and grass belonged to the Accused’s vehicle because of the types of tires on the Accused’s vehicle, where the vehicle ended at rest, and also based upon his experience. [ 150 ] However, as pointed out by Defence Counsel, there was no testing to confirm that the tire marks considered by Sergeant Whiffen actually belonged to the Accused’s vehicle. Further, it is not clear how he determined, based on his experience, that those tire marks were consistent with the Accused’s type of tires.

In addition, in cross-examination, Sergeant Whiffen acknowledged that he was not aware that the Accused’s vehicle had been moved back over a hundred meters before the vehicle had stopped at rest.

This all brings into question the reliability of his assumption regarding the path of the vehicle, and whether he relied on the right tire marks to assist him in his determination of the point of impact. [ 151 ] Further on this point, I add that based upon the photos in evidence, it was difficult to discern what tire marks were relied on by Sergeant Whiffen; and it was not apparent whether such were the only tire marks on the shoulder of the road. [ 152 ] A similar concern arises as to the reliability of the precision of Sergeant Whiffen’s measurement to the point of final rest of Justin Hynes’ body.

In cross-examination, Sergeant Whiffen acknowledged that upon his arrival at the scene, the body was no longer there. Rather, upon his arrival, Justin Hynes’ bookbag was covered in the area where the body was. The photos do establish that the bookbag was in the area of final rest for Justin Hynes, as it was in his hand. Nevertheless, it is unclear exactly where the measurement was taken to determine the end point of the throw distance. [ 153 ] As submitted by Defence Counsel, Sergeant Whiffen was unable to say what the impact would be on his speed calculations if he was off by a meter in his measurements.

He did acknowledge it would possibly impact the calculation. In my view, it can be inferred from the formulas that the throw distance impacts the calculation of speed. It is a variable for both formulas.

Therefore, it is important to determine the point of impact, and the place of final rest, with some degree of certainty; or at the very least by identifying a margin of error for the measurement of throw distance. [ 154 ] To be clear, based on the whole of the evidence, I am satisfied that the collision did indeed occur in proximity to the fire hydrant, and the intersection; and that the bookbag was in the area of final rest of Justin Hynes’ body.

However, in my view there is insufficient evidence to conclude that Sergeant Whiffen’s measurement of the throw distance was sufficiently reliable to input in the formulas for the purposes of determining speed. Rather, in my view, the throw distance was a rough estimate; and it was based on assumptions not adequately substantiated by the evidence. [ 155 ] Further, Sergeant Whiffen’s application of the formulas for calculating speed was based upon his assumption that the manner of the collision was in keeping with a “wrap trajectory” collision.

Defence Counsel submitted that Sergeant Whiffen substantiated this assumption by testifying outside of his area of expertise. I agree. [ 156 ] To elaborate, Sergeant Whiffen determined that Justin Hynes was hit from behind by the Accused’s vehicle, that his body went up on the hood, that his head hit the windshield, and that he was thrown from the hood of the car onto the road, a distance of 8.30 meters from the point of impact; and that then Mr. Hynes’ body slid to his final resting place, a distance of 36.90 meters from the point of impact.

Sergeant Whiffen determined this based on his observations at the scene; including his observations of blood stains, which in his view lead in a fairly straight line to the body. [ 157 ] By contrast, Defence Counsel suggested that the evidence at the collision scene was consistent with Justin Hynes having been dragged, or run down, as opposed to thrown. Defence Counsel submitted that it was beyond Sergeant Whiffen’s

[…]