R. v. Trudeau, 2019 MBPC 37

CITATION: R. v. Trudeau , 2019 MBPC 37 THE PROVINCIAL COURT OF MANITOBA Winnipeg Centre BETWEEN Her Majesty the Queen ) ) K. Logan for the Crown ) - and - ) ) ) Michelle Trudeau ) ) D. Gunn for the Accused ) ) Judgment delivered: ) June 18, 2019 C.A. DEVINE, P.J. Introduction [ 1 ] On January 8, 2017 Jeffrey Hunter died instantly when he was struck by a semi-truck and trailer. This case does not involve charges involving the driver of the semi however; it involves a charge against another driver, Michelle Trudeau, who had stopped on the highway to assist stranded motorists. Her vehicle was also hit by the semi.

No information was provided to me about what charges, if any, were laid against the driver of the semi. [ 2 ] Eight months after this tragic event, Ms. Trudeau was charged with stopping or parking on a highway thereby constituting a hazard resulting in death, pursuant to subparagraph 122(1) (o)(

i) of The Highway Traffic Act , S.M. 1985-86, c. 3 ( HTA ). [ 3 ] The trial of this matter took place in Steinbach, Manitoba. Several Crown witnesses testified, including two friends of Mr. Hunter who were driving into Winnipeg with him that morning, the RCMP officer who was dispatched to the collision, and an RCMP forensic collision reconstructionist whose collision investigation report was entered into evidence and who was qualified to provide expert opinion evidence. Another exhibit filed in the trial was the dash cam video from the Volvo semi that hit Mr. Hunter. Ms.

Trudeau did not call evidence. [ 4 ] Most of the facts in this matter are not in dispute. All of the witnesses were credible and believable and I am satisfied that they testified to the best of their abilities. [ 5 ] The sole issue in this trial is whether Ms. Trudeau’s stopped vehicle constituted a hazard. Facts [ 6 ] Early in the morning on January 8, 2017 Ms. Trudeau was driving east towards Winnipeg on the TransCanada Highway. She was driving a Ford F-150 truck and towing a boat on a trailer. Just before 6:00 a.m. she came upon a pick-up truck that was in the ditch on her right.

The truck was facing into traffic and had its flashers on. One of the occupants of the vehicle flagged her down and she stopped to assist him. [ 7 ] The person was Jeffrey Hunter. He and three of his friends had been ice-fishing on Shoal Lake and having some beers. They decided to drive to Winnipeg in the small hours of the morning. Mr. Hunter was very intoxicated – he had been the driver of the pick-up when it went into the ditch. His friends told him not to get out of the truck, but he crawled out the window and went onto the highway to flag vehicles down.

There was not much traffic, according to one of his friends who testified, Jeremy Mandamin. It was Ms. Trudeau who stopped. [ 8 ] It was dark outside and extremely cold, between minus 20 and minus 30 degrees Celsius. The driving conditions were clear. There was no snow on the highway, but in the photographs taken by Corporal Pinsent, the traffic collision reconstructionist, snow is visible on the shoulder of the highway. Constable Kenneth Friesen, an officer of 12 years with the RCMP, and three years in the Steinbach detachment, testified that the crash site was situated on a

section of highway that is straight for a few kilometres in either direction. He testified that the highway east of the collision site is straight for five to 10 kilometres, the last curve being at Lilac Camp. [ 9 ] Constable Friesen testified that anyone would be able to perceive the collision site for a long distance.

[ 10 ] Ms. Trudeau stopped her vehicle in the driving lane of the double-lane highway. Evidence from the forensic traffic collision report shows that her transmission was in “park” but her seatbelt and her brakes were still on. The brake lights on her truck and the boat trailer, as well as a light on the back of the cab of her truck are all clearly visible in the dash cam video. [ 11 ] A very short time later, a semi was travelling at 92 kilometres per hour towards Ms. Trudeau and Mr. Hunter. The truck was in the same lane as Ms.

Trudeau’s truck and boat. [ 12 ] The semi did not move into the passing lane, slow down, nor brake. [ 13 ] The semi-driver did not notice Ms. Trudeau’s vehicle until it was too late. [ 14 ] Mr. Wayash testified, “Then I heard tires screeching and a big bang, and I realized Jeffrey was hit.” Mr. Wayash did not see the semi slow down nor make any evasive maneuvers. He testified that he did not know why the semi-driver did not stop or switch lanes. Mr. Mandamin testified that he could see that the semi did not slow down nor stop. He did not hear any brakes. “The front wheel took Jeff out.

I’m blaming the truck driver.” [ 15 ] These observations were corroborated by the traffic collision report and the dash cam video which provided evidence that the driver of the semi first noticed Ms. Trudeau’s vehicle half a second before he struck it. He applied his brakes one quarter of a second before the collision. [ 16 ] This last-second attempt to evade Ms. Trudeau’s vehicle was disastrous. The semi-driver swerved to the right, that is, the shoulder on the right hand side of the highway. He struck the back of the boat trailer, then Mr. Hunter and then the front of Ms. Trudeau’s truck.

The force of the impact sheared the left wheel from the semi; the wheel assembly was found further down the highway. The force of the impact had also removed the rear right wheel assembly of Ms. Trudeau’s truck from the axel and that wheel assembly was found nearby. The boat trailer was compressed and twisted and the boat was destroyed. [ 17 ] Mr. Hunter was crushed and died instantly in the collision. [ 18 ] The collision occurred at 6:00 a.m. [ 19 ] Constable Friesen was dispatched to go to the collision just after 6:00 a.m. He saw Mr. Hunter’s vehicle with its four-way flashers on, in the ditch.

He spoke to Ms. Trudeau. There was no alcohol involved. Constable Friesen did not provide Ms. Trudeau with her right to counsel and caution because he did not believe there was any culpability on her part. It was only after this matter went for Crown opinion that the charge was laid, several months later. The Traffic Accident Reconstruction Report and Opinion [ 20 ] Corporal Kenneth Pinsent has been with the RCMP just under 15 years.

I qualified him to provide expert evidence in forensic collision reconstruction and to provide opinion evidence of his analysis of the collision in this case. [ 21 ] Corporal Pinsent testified that Ms. Trudeau’s truck and boat trailer were illuminated not only by the semi’s headlights, but by the brake and cab lights of the truck and boat trailer. [ 22 ] It was clear and dark and there were no obstructions on the highway. It is possible the lights of Ms.

Trudeau’s truck and boat trailer could have been seen for up to a minute, that is, up to a kilometre away, but certainly they were visible at least 200 metres away. [ 23 ] The asphalt was dry and in good condition. The driver only needed between 91 and 115 metres to stop. [ 24 ] Corporal Pinsent did not review the semi-driver’s statement nor his log book, nor did he ascertain whether the driver was using a cellphone. When he watched the dash cam video during his testimony, Corporal Pinsent agreed that the driver did not seem to see the lights ahead.

It was only when the emergency beeping inside the cab of the semi sounded that he reacted. He agreed the driver was either distracted or fatigued. [ 25 ] Corporal Pinsent’s opinion was that there was sufficient time for the semi-driver to stop if he had perceived the lights when they became obvious. His further opinion was that the driver of the semi did not see Ms.

Trudeau’s vehicle and boat ahead until it was nearly too late to react. [ 26 ] Although he testified that the driver could have stopped, Corporal Pinsent also testified that the semi-driver, having recognized that both westbound lanes ahead of him were occupied by a stopped or slow-moving vehicle, had to swerve to the right to avoid a collision. [ 27 ] He also testified that had Ms.

Trudeau pulled onto the shoulder when she stopped to check on the stranded motorists, the collision “may” not have occurred. [ 28 ] I do not accept these further opinions of Corporal Pinsent that the semi-driver’s last-second decision to swerve to the right was unavoidable and that Ms. Trudeau “could have” pulled onto the shoulder to avoid a collision. I do not believe these latter opinions are borne out by the evidence. [ 29 ] The dash cam video was played several times in court for Corporal Pinsent. I also reviewed it several times. There were two

camera views – one camera was focussed inside the cab on the driver of the semi and the other camera was focussed on the road straight ahead. It was clear from the dash cam video that there was a vehicle in the left-hand passing lane, going past Ms. Trudeau. It did not appear to be slow moving. The passing vehicle appeared to be already ahead of Ms. Trudeau. The semi-truck driver could have passed Ms. Trudeau’s vehicle as the vehicle ahead of him had done. [ 30 ] It was also Corporal Pinsent’s opinion that if Ms. Trudeau’s vehicle had been at the shoulder, the collision “may” not have occurred.

It was his opinion that she “could” have pulled over. He did not believe there was any “significant” snow on the shoulder. [ 31 ] I am not satisfied that Ms. Trudeau could have safely pulled over to the shoulder, when considering the evidence of Mr. Hunter’s companions and the photos of the scene, which show snow on the shoulder. Mr. Hunter’s companions testified that they tried to dissuade a very intoxicated Mr. Hunter from going onto the highway to flag down help. Although I do not know his exact position on the highway when Ms.

Trudeau stopped her truck, I can safely infer she stopped where she did to avoid hitting Mr. Hunter. I also find as a fact that snow on the shoulder of the highway could have prevented her from pulling over. [ 32 ] It is obvious that if the driver had seen Ms. Trudeau’s well-lit and unobstructed truck, boat and trailer, he had time to stop before colliding with it or could have pulled into the passing lane to safely pass it. The Offence [ 33 ] Ms. Trudeau was charged with stopping or parking her vehicle in such a manner that it constituted a hazard, pursuant to subparagraph 122(1) (o)(

i) of the HTA : Where stopping, standing, parking prohibited 122(1) Except when necessary to avoid conflict with traffic or to comply with another provision of this Act or the regulations under this Act or the directions of a peace officer or traffic control device, no person shall stop, stand, or park a vehicle (

o) in such manner that (

i) it constitutes a hazard on the highway [ 34 ] There are no offences involving “causing death” in the HTA , unlike the Criminal Code . [1] [ 35 ] However, when death results from an offence under the HTA , the penalties are more severe. There is no maximum fine for offences resulting in death, and a driver found guilty of an offence resulting in death could be sentenced to jail for up to two years. In addition, drivers convicted of a traffic offence where death results could have their licence suspended for up to five years.

Subsections 239.2(1) and (2) provide as follows: Increased penalties for offences resulting in death 239.2(1) If a person's death results from the commission of an offence for which another person is convicted under subsection 239(1) or another provision of this Act, the convicting judge or justice may impose either or both of the following penalties: (

a) a fine in an amount that is not restricted to the maximum fine otherwise provided for the offence; (

b) a term of imprisonment of not more than two years. This is despite

section 239 or any other provision of this Act that sets out a penalty for the offence. Licence suspension or disqualification 239.2(2) In addition to imposing a penalty under subsection (1) or under any other provision of this Act, the convicting judge or justice may (

a) suspend the person's licence for a term of not more than five years; or (

b) disqualify the person from holding a licence for a term of not more than five years if, at the time of the conviction, (

i) the person does not hold a licence, or (ii) the person's licence is suspended or he or she is disqualified from holding a licence. [ 36 ] Although the subsection has not been judicially considered, defence counsel conceded and I accept, that it is a strict liability offence. It bears some similarity to the HTA offence of careless driving considered in R. v. Cooke , 2001 CarswellMan 613 (Man.Prov.Ct.) and R. v. Vandal , 2015 MBPC 32 .

In Cooke , Judge Joyal, as he then was, conducted an extensive analysis of the provincial careless driving provision and determined it was a strict liability offence. [ 37 ] To obtain a conviction for a strict liability offence, it is sufficient for the Crown to prove that the person did the act prohibited in the legislation; the Crown does not have to prove an intention to commit the act.

A person accused of a strict liability offence has the defence of due diligence available to them. [ 38 ] The burden of proof is beyond a reasonable doubt. [ 39 ] Subsection 122(1) lists several circumstances and situations where stopping, standing or parking a vehicle is prohibited. The entirety of the subsection states as follows:

Where stopping, standing, parking prohibited 122(1) Except when necessary to avoid conflict with traffic or to comply with another provision of this Act or the regulations under this Act or the directions of a peace officer or traffic control device, no person shall stop, stand, or park a vehicle (

a) on a sidewalk; (

b) in front of a driveway; (

c) within an intersection or within 3 metres thereof or such greater distance as may be prescribed by the appropriate traffic authority; (

d) within three metres from the point on the curb or edge of the roadway immediately opposite a fire hydrant; (

e) on a crosswalk; (

f) within 3 metres of the approach side of a crosswalk; (

g) within 9 metres upon the approach to any flashing beacon, "stop" or "arrêt stop" sign, or traffic control signal situated at the side of a roadway, or within such greater distance therefrom as may be prescribed by the appropriate traffic authority; (

h) within 30 metres of the nearest rail of a railway crossing, or, except in the case of a railway crossing a provincial trunk highway, within such greater or lesser distance therefrom as may be prescribed by the appropriate traffic authority; (

i) within 6 metres of a driveway entrance to a fire station, or on the side of a street opposite the entrance to a fire station within 30 meters of the entrance when properly marked with signs, or, except in the case of a fire station adjoining or facing a provincial highway, within such greater or lesser distance as may be prescribed by the appropriate traffic authority; (

j) alongside or opposite a street excavation or obstruction when stopping, standing, or parking obstructs traffic; (

k) on the roadway side of a vehicle stopped or parked at the edge or kerb of a street; (

l) upon a bridge or other elevated structure upon a highway or within a highway tunnel; (

m) in a place in contravention of a traffic control device that gives notice that stopping, standing, or parking is there prohibited or restricted; (

n) at a curve upon a highway outside a restricted speed area, unless a clear view of the vehicle may be obtained from a distance of at least 60 metres in each direction upon the highway; (

o) in such manner that (

i) it constitutes a hazard on the highway , or (ii) it is parked in contravention of (

A) any provision of this Act, or (

B) a rule or by-law of a traffic authority that has been passed and indicated or made known in accordance with this Act. [Emphasis added] [ 40 ] There is no blanket prohibition on stopping or parking on a highway. Subparagraph 122(1)(o)(

i) prohibits stopping or parking in a manner that constitutes a hazard on a highway. Thus, “in a manner that constitutes a hazard” is an element of the actus reus that the Crown must prove. It is not sufficient for the Crown to prove that the vehicle was stopped or parked on the highway and a motor vehicle accident resulted. The requirement that the Crown prove that the vehicle was stopped or parked in a manner constituting a hazard cannot be subsumed into the resulting accident, nor can it be inferred because an accident occurred.

The two things are separate and cannot be conflated. [ 41 ] The issue of whether the motor vehicle collision is determinative of careless driving or dangerous driving has been considered in several cases. The law is clear that the resulting accident is not determinative of whether the driver was driving in a manner that was careless or dangerous. In R. v.

Trigiani , (1999) 48 M.V.R. (3d) 228 (Ont.C.J.) , Justice Libman stated, “the fact of an accident, is no more indicative that it was the product of careless driving than the absence of same may be indicative of lack of carelessness” (at para. 230). [ 42 ] In Cooke , Judge Joyal stated: . . . the prohibited act that must be proved by the Crown beyond a reasonable doubt in light of all of the circumstances, is not the accident per se, but rather the failure on the part of the accused to use care and attention or to give to other users of the road, the consideration required of a driver taking ordinary care. . . . (at para. 92) [ 43 ] Justice Charron for the Supreme Court of Canada stated the law on this issue in R. v.

Beatty , 2008 SCC 5 : . . . it is the manner in which the motor vehicle was operated that is at issue, not the consequence of the driving. The consequence, as here where death was caused, may make the offence a more serious one under s. 249(4), but it has no bearing on the question whether the offence of dangerous operation of a motor vehicle has been made out or not. Again, this is also an important distinction. If the focus is improperly placed on the consequence, it almost begs the question to then ask whether

an act that killed someone was dangerous. 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. The consequence, of course, may assist in assessing the risk involved, but it does not answer the question whether ornot the vehicle was operated in a manner dangerous to the public. This Court explained this distinction in R. v. Anderson, (SCC), [1990] 1 S.C.R. 265 (S.C.C.), as follows: In the circumstances of this case, the unfortunate fact that a person was killed added nothing to the conduct of the appellant.

The degreeof negligence proved against the appellant by means of the evidence that he drove after drinking and went through a red light was notincreased by the fact that a collision occurred and death resulted. If driving and drinking and running a red light was not a markeddeparture from the standard, it did not become so because a collision occurred. In some circumstances, perhaps, the actions of theaccused and the consequences flowing from them may be so interwoven that the consequences may be relevant in characterizing theconduct of the accused.

That is not the case here. [Emphasis added; p. 273.] (Emphasis in Beatty, at para. 46) [44] The only question that I must answer in this case is whether Ms. Trudeau stopped in a manner that constituted a hazard; theresulting accident is not proof of the offence. [45] Counsel filed cases dealing with the regulatory offence of careless driving and failing to pay due attention, and also filed casesdealing with the criminal offences of dangerous operation of a motor vehicle and criminal negligence.

None of those cases answer thequestion in this case, but are of some assistance. [46] In Beatty, the accused was charged with dangerous operation of a motor vehicle pursuant to subsection 249(1)(

a) of theCriminal Code. The wording of the subsection is similar to the wording of subparagraph 122(1)(o)(

i) of the HTA. Subsection 249(1)(a)makes it an offence “to operate a motor vehicle in a manner that is dangerous to the public.” Subparagraph 122(1)(o)(

i) of the HTAprohibits stopping or parking a vehicle “in such a manner that it constitutes a hazard on the highway.” Mr. Beatty suffered a momentarylapse of attention that caused his vehicle to cross the centre line of the highway. A fatal traffic accident occurred. In all other respects, hisdriving was normal. The Supreme Court of Canada upheld his acquittal on driving dangerously. [47] In R. v. Czornobaj, 2014 QCCS 6709, the accused was convicted of criminal negligence and dangerous driving cause death.She was trying to rescue baby ducklings on the left-hand shoulder of the highway.

She stopped her vehicle in the passing lane and leftthe driver’s door open. She walked along the narrow shoulder to herd the ducklings. There was bright sunshine requiring other drivers toput their visors down. One driver was able to evade a collision by quickly swerving to the right into the driving lane, but the motorcyclistfollowing right behind her and driving 110 to 115 kilometres per hour did not see the vehicle in time and collided with it. The driver infront of the motorcyclist had not put her brakes on, so he had no warning of the danger in front of him.

He was distracted by the spectacleof the young woman walking on the shoulder of the road with the ducks. [48] Czornobaj can be distinguished from the case at bar in several respects. In Ms. Trudeau’s case, the semi-driver’s view of Ms.Trudeau’s well-lit vehicle was unobstructed for a long distance. The passing lane and shoulder were clear, unlike in Czornobaj where thepassing lane and shoulder were both obstructed by Ms. Czornobaj’s vehicle. Finally, Ms.

Czornobaj, by walking on the shoulder of thenarrow highway, was creating another danger that drivers, including the deceased, were trying to avoid. [49] The careless driving cases are of some assistance, particularly some advertence to the test for careless driving established in R.v. Beauchamp, (ON CA), [1953] O.R. 422 (Ont.C.A.), and cited in R. v. Kinch, [2004] O.J. No. 486 (ONSC) atparagraph 50: The test for careless driving has remained constant since the Court of Appeal decision in Beauchamp, supra.

The main criteria are thestarting point in determining whether the Crown has established the trial judge erred in law: • The evidence must be such as to prove beyond a reasonable doubt that the accused drove without due care and attention or withoutreasonable consideration for others. • The standard of care and skill is not one of perfection. Rather, it is a reasonable degree of skill, and what an ordinary person woulddo. • The use of the term “due” means care owing in the circumstances.

While the legal standard of care remains the same - what theaverage careful man would have done in the circumstances, the factual standard is constantly shifting, depending on road, visibility,weather conditions, traffic conditions and any other condition that ordinary prudent drivers would take into consideration. • The law does not require of any driver that he should exhibit perfect nerve and presence of mind, enabling him to do the best thingpossible. It does not expect him to be more than ordinary men.

Drivers of vehicles cannot be required to regulate their driving as if inconstant fear that other drivers, who are under observation, and apparently acting reasonably and properly, may possibly act at a criticalmoment in disregard of the safety of themselves and other users of the road. • The standard was objective, impersonal and universal, in no way related to the degree of proficiency or experience of a particulardriver. • There was a further important element - that the conduct must be of such a nature that it could be considered a breach of duty tothe public, and deserving of punishment.

This further step must be taken even if the accused’s conduct fell below the standard. • The test where an accident has occurred, is not whether the accident would not have happened if the accused had used greater skillor care, but whether it was proved beyond a reasonable doubt that the accused, in the light of existing circumstances of which he knew orshould have known, failed to use the care and attention or to give to other users of the highway the consideration that a driver of ordinarycare would have used, or given in the circumstances. [50] In Kinch, the accused was charged under provincial highway traffic legislation with careless driving.

The driver was in a similarposition to the semi-driver in the case before me, as opposed to the accused, Ms. Trudeau. Mr. Kinch was travelling behind a semi anddid not slow down when the semi pulled into the left lane to make a wide right-hand turn. Similar to the semi-driver in the case before

me, Mr. Kinch did not seem to notice the semi ahead of him slowing down and covering both lanes of the highway. He did not slow down nor brake, and in a last-second attempt to avoid a collision, swerved towards the ditch. In her findings of fact, the trial judge stated: . . . What the tractor trailer did may have been potentially dangerous. However, there was no reason that Mr. Kinch could not see that something was happening out of the ordinary. He saw or should have seen what others saw unfolding in front of him. . .

He was obliged therefore to slow down and proceed with caution if it was safe. . . (at para. 29) [ 51 ] In R. v. Namink , [1979] O.J. No. 317 (Ont.Co.Ct.) , the accused was charged with the provincial offence of careless driving. During otherwise unremarkable driving, his vehicle skidded on ice while passing another vehicle, thereby striking it.

The appeal judge found that “at best” there was momentary inattention that was insufficient to justify a conviction under the quasi-criminal charge. [ 52 ] In Cooke , the driver was acquitted of careless driving under the Manitoba HTA when he struck and killed a pedestrian who appeared “oblivious” and crossed the street at a place where there was neither an intersection nor a cross-walk. [ 53 ] In R. v.

Vandal , 2015 MBPC 32 , the driver was acquitted of careless driving when her passenger suddenly grabbed the steering wheel and forced the vehicle to swerve into oncoming traffic. [ 54 ] As indicated earlier, this is not a case of careless driving such that an analysis of negligence is called for.

The sole question to determine is whether the manner of stopping or parking on the highway constituted a hazard. [ 55 ] Black’s Law Dictionary defines “hazard” as “danger or peril.” [ 56 ] The main issue in this case, that is, what constitutes a “hazard,” cannot be determined in a vacuum. [ 57 ] Driving and navigating the highways are not static endeavours. They are fluid undertakings, with conditions shifting constantly. All of the circumstances and conditions present at the time Ms.

Trudeau stopped her vehicle must be considered. [ 58 ] Even in the careless driving/negligence cases it is recognized that there is a shifting standard of care depending on traffic conditions, lighting, road conditions, and unforeseen emergent circumstances. Judge Duvall (as she then was) considered this in the context of the provincial offence of careless driving in R. v. Tyndall , [1988] M.J. No. 650 (Man.Prov.Ct.) at paragraph 10 :

Section 188 (careless driving), which deals with inadvertent negligence, contains an absolute prohibition and is directed to the regulation of traffic. The offence is committed by the absence of thought, care and attention. The standard is a constantly shifting one, depending on the road, visibility, weather and traffic conditions that exist or may reasonably be expected and any other conditions that ordinary drivers would take into consideration.

The Crown is obliged to produce sufficient evidence of pertinent facts to enable the Court adequately to assess the conduct of the accused against the objective standard of what the reasonably prudent driver would have done in the situation disclosed by the evidence. The improper driving may be manifested by recklessness on the part of the driver for speed incompatible with public safety, or any other disregard of the public. Analysis [ 59 ] The thrust of the Crown’s argument in this case is that Ms.

Trudeau created a hazard by stopping her truck on the highway and that she could have and should have pulled onto the shoulder. First, it is not an offence to stop or park on a highway per se . It is only an offence if the stopping or parking is done in a manner that constitutes a hazard. [ 60 ] Secondly, unlike the charge of careless driving, the charge of stopping in such a manner as to constitute a hazard does not contain a negligence standard. It is not necessary to consider Ms. Trudeau’s actions against those of the reasonable driver.

Therefore, a consideration of whether she should have pulled onto the shoulder or whether a reasonable driver would have pulled over to the shoulder is not relevant to the consideration of whether she created a hazard. Moreover, I am not satisfied that she could have pulled onto the shoulder; it was pitch dark, Mr. Hunter was on the highway and there was snow on the shoulder. [ 61 ] It is important to consider the conditions and circumstances in which Ms. Trudeau stopped her vehicle to determine whether it was done in such a manner as to constitute a hazard. [ 62 ] The circumstances in which Ms.

Trudeau stopped are as follows: - she was driving a Ford F-150 truck and pulling a trailer with a motor boat - an intoxicated man was coming onto the highway or was on the highway - it was dark - it was winter - there was not a lot of traffic - she was in a long stretch of straight highway, it was clear there was nothing obstructing a view of the highway for a long distance - she stopped her vehicle to avoid hitting Mr. Hunter - although the lanes of the highway were clear of snow, there was snow on the shoulder which may also have prevented her from pulling onto the shoulder - she activated her brake lights

- she also had the cab light on the back of the truck - Mr. Hunter’s vehicle had its hazard lights on - all these vehicle lights were clearly visible for a long distance - the passing lane of the highway was clear and unobstructed [ 63 ] It was in these circumstances that the driver of the semi-trailer failed to notice Ms. Trudeau’s vehicle and take timely evasive action. The driver should have been able to see her vehicle for a significant period of time and for a significant distance. He was not paying attention. He had more than adequate time to brake and safely move to the passing lane to pass Ms.

Trudeau’s vehicle. [ 64 ] The driver did not brake until it was too late. Instead of passing on the left as is usual, he swerved toward the ditch and hit Ms. Trudeau’s boat, truck and most tragically, Mr. Hunter. [ 65 ] The circumstances of this case speak directly to the actus reus which the Crown must prove beyond a reasonable doubt. As Judge Joyal stated in Cooke , the prohibited act the Crown must prove is not the collision, but rather stopping or parking in such as a manner as to constitute a hazard. Ms.

Trudeau is not expected to regulate her driving behaviour to eliminate all possibilities of danger, no matter how remote. Conclusion [ 66 ] Ms. Trudeau did not park or stop in such a manner as to constitute a hazard on the highway. [ 67 ] She was a Good Samaritan who stopped to help her fellow man. Her vehicle was well-lit and could be seen for miles. Because of the action or inaction of another that Mr. Hunter was tragically struck and killed. [ 68 ] I am not satisfied beyond a reasonable doubt that Ms. Trudeau is guilty of stopping or parking in such a manner that she created a hazard on the highway.

She is found not guilty of that offence. “Original signed by” C.A. DEVINE, P.J.