r v. NORMAN GRAHAM, 2014 QCCQ 6926

JL4353 R. c. Graham 2014 QCCQ 6926 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF TERREBONNE Criminal and Penal Division No: 700-01-105635-117 DATE: June 27, 2014 ______________________________________________________________________ BY THE HONOURABLE BRUNO LECLERC, J.C.Q. ______________________________________________________________________ HER MAJESTY THE QUEEN Prosecutor v.

NORMAN GRAHAM Accused ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The accused is charged with criminal negligence and dangerous operation of a motor vehicle, causing the death of a girl and bodily harm to her mother. [ 2 ] At issue is whether the accused's actions are consistent with the legislative and jurisprudential

definitions of these crimes, from the standpoint of both the actus reus and the mens rea . CONTEXT [ 3 ] The evidence relevant to the disposition of the case was presented in various ways, namely, through the filing of stenographic notes of the examinations of certain witnesses during the preliminary inquiry, through admissions, through oral evidence and through documentary evidence. [ 4 ] Since the facts in this case provide answers to many of the questions raised in it, it is of paramount importance that the Court set forth the evidence accepted by it. (

a) The Crown's case [ 5 ] The prosecution called a number of witnesses, who, one after the other, established the sequence of events they experienced on June 29, 2010. [ 6 ] None of these witnesses saw all of the events. They each explained in turn what they had seen. [ 7 ] Stéphane Tremblay explained that he is a trucker and that, on the day of the events, he was driving his truck north on Highway 327, in the direction of Mont-Tremblant. He saw an oncoming vehicle travelling at high speed (130-140 km/h) in order to pass two vehicles. Mr.

Tremblay had to swerve onto the shoulder to avoid a head-on collision with the vehicle, which was in fact in the trucker's lane. He subsequently identified the vehicle as being that of the accused. [ 8 ] Mr. Tremblay said he found it difficult to estimate the distance between that spot and the intersection of highways 327 and 364. He thought it might be one kilometre, maybe two. However, he was certain that the vehicle was level with a small electricity generating station at the time of the manœuvre.

The freehand drawing filed by the defence as Exhibit D-1 and the video filed by the prosecution as Exhibit P-9 show that a distance of 600 metres should be considered between the electricity generating station and the intersection of the two highways. [ 9 ] After swerving to avoid the accused's vehicle, the trucker saw the accused almost lose control of his vehicle, which went onto the shoulder before going back into its lane.

[ 10 ] After getting out of his vehicle to calm down and exchange a few words with another driver who had been following him and who also had had to swerve to avoid the accused's vehicle, and being certain that the accused's driving could lead only to disaster, he decided to make a U-turn to see what had happened with the accused. [ 11 ] On arriving at the intersection, he saw that there had already been an accident, that there was a lot of debris and that a girl on or near the white line was already being tended to. [ 12 ] Mr.

Tremblay went over to the accused and asked him why he had been going so fast, to which the accused replied: "I was not going fast". [ 13 ] Daniel Lévesque explained that, on June 29, 2010, he was driving a car and saw a dangerous passing manoeuvre as he went past the Serres Arundel, which, according to the witnesses and the exhibits filed, is located 300 to 400 metres from the intersection of highways 327 and 364. At that spot, he saw three vehicles coming toward him in their own lane, then the third vehicle change lanes to pass the vehicles ahead of it. That manœuvre forced Mr.

Lévesque to swerve onto the shoulder on his right to avoid being hit by the accused's vehicle. He did not end up in the ditch, but it was a close call. [ 14 ] He then heard a sound and saw that there had been a collision, which seemed minor to him, not a big collision. He did not learn of the main collision until later, when he met with the police. [ 15 ] Robert Auger works at the Serres Arundel, located, according to the evidence, on Highway 327, at 300 or 400 metres from the intersection of that road and Highway 364. [ 16 ] On June 29, 2010, Mr. Auger was on foot and decided to cross Highway 327.

He looked north and saw a vehicle travelling at high speed (90 or 100 km/h); one of its wheels was on the shoulder. According to the witness, the vehicle had a flat tire, because of the sound and the way in which the vehicle was travelling on the shoulder. Later, on arriving at the scene of the accident, he saw that the vehicle did indeed have a flat tire. [ 17 ] The vehicle passed in front of him and, a few seconds later, he heard a collision.

He walked to the intersection and saw that there had been a collision between the vehicle he had just seen and another vehicle. [ 18 ] Timothy Gariépy was travelling south on Highway 327 (toward Arundel) when his vehicle and the others in the pack caught up to another vehicle (the accused's), which was travelling at about 30 km/h in a 70-km/h zone. At least three vehicles passed the slow vehicle. Mr.

Gariépy's vehicle was the last one to pass the accused's automobile. [ 19 ] He estimated that, about 15 seconds later, the accused's vehicle was travelling much faster, at a speed of approximately 100 km/h, whereas he estimated his own speed to be about 60 km/h. [ 20 ] The accused passed Mr. Gariépy illegally, at which time the right side of the accused's vehicle struck the left side of Mr. Gariépy's vehicle, near the back wheel.

This is what the parties referred to as the small collision, or first collision, throughout the proceedings. [ 21 ] The witness estimated that that collision occurred at roughly 300 to 500 metres from the intersection of highways 327 and 364. However, the accident scene reconstruction expert found physical evidence of the first collision at 47.78 metres from the intersection, proof, if proof were necessary, of the risk inherent in any evaluation of time or distance by a non-expert witness. [ 22 ] Following the collision, Mr. Gariépy pulled over to see whether there was any damage and heard another collision.

He went to the intersection and saw that the accused's vehicle had hit the victims' vehicle. It had gone over the top of their vehicle, ripping off its roof. [ 23 ] He saw the two victims, the girl and her mother, who were badly injured. Assisted by his sister, who was with him, he helped give first aid to the victims. [ 24 ] Molly Gariépy, Timothy Gariépy's sister, testified and confirmed her brother's testimony, almost point by point.

She added that she saw the driver of the vehicle who had hit them, and that both his hands were on the steering wheel and he was staring ahead, his eyes practically bulging out of their sockets.

In cross-examination, she added that the driver had a strange look about him, as if he were frightened, and was staring at the road, as mentioned in a previous statement to the police. [ 25 ] She explained that she was a lifeguard and had been able to care for the injured with her brother's help until the first responders and ambulances arrived. [ 26 ] Mélissa Martineau was driving north when she came upon the victims' vehicle and the vehicle of the accused, which were in the southbound lane.

She saw the collision between the accused's vehicle and that of the victims. [ 27 ] Marcel Ouellette is the father of the girl who was killed and the spouse of the woman who was injured. He was driving the vehicle in which the victims were riding. He was waiting at the mandatory stop at the intersection of highways 327 and 364 when the accused's vehicle hit the back of his vehicle at high speed. [ 28 ] He testified about the collision and its consequences. He went to see the accused, saying "You hit me", to which the accused reportedly answered "So what".

The witness allegedly said to the accused "You killed my daughter", to which the accused reportedly again replied "So what". [ 29 ] The witness added that he punched the accused in the face, which was not mentioned in his statements to the police and about which none of the witnesses could testify.

[ 30 ] In cross-examination, Mr. Ouellette admitted that the accused's replies reported in his statement to the police were in fact "Yes, so" and "And what", and were in response to the comments "You hit me" and "You killed my daughter". [ 31 ] That contradiction is of little consequence, in the Court's view, the exact words being less important in its eyes than the context in which they were said and the tone used. [ 32 ] According to Mr. Ouellette, his vehicle was stopped at a stop line when the collision occurred.

That seemingly contradicts the physical evidence noted by the accident reconstruction expert at six metres beyond the stop line. First, what the expert drew on the ground represents the wheels of the victims' vehicle, not the vehicle itself. Second, what the accident reconstruction expert noted was the physical marks left by the vehicle on impact. Could the vehicle have been thrown a few metres beyond the stop line before leaving marks on the ground? The Court believes it is likely and does not see this, either, as a fundamental contradiction or as implausibility in Mr.

Ouellet's testimony. [ 33 ] Thus, the prosecution's case included the testimony of an accident scene reconstruction expert and that of a police officer who had preserved the accident scene. [ 34 ] These witnesses talked about the circumstances of the collision and drew certain conclusions primarily from the physical evidence and, to a lesser degree, from the versions of various witnesses. [ 35 ] The Court believes that the physical evidence, comprised of drawings, photographs, a video, a vehicle inspection and various other measures, is helpful in ruling on this case. [ 36 ] In the eyes of the Court, the aforementioned testimony is less important with respect to the circumstances of the collision between the victims' vehicle and that of the accused, and to the force and consequences of the collision, since dangerous operation of a vehicle or criminal negligence is not evaluated on the basis of the consequences of dangerous driving. (

b) The defence's case [ 37 ] In addition to filing freehand drawings of the places where the accused had driven his vehicle, the defence opened its case by filing summaries of the testimony of the first responders, who all noted the state of shock the accused and his spouse were in when they arrived at the scene after the collisions. [ 38 ] Counsel for the accused suggested to the Court that it consider that post-accident state of shock in determining the state of the accused while he was operating his vehicle, which, in her opinion, corroborated the accused's state of unconsciousness when he made the passing manoeuvres reported by the witnesses.

The Court is of the view that it cannot make such an inference, since the collision could clearly have been an element capable of altering the accused's state of consciousness. [ 39 ] The accused, Norman Graham, was heard and testified that he had virtually no recollection at all of the events. [ 40 ] At most, he recalled driving his car when he left with his spouse to make photocopies in Arundel. He remembered seeing a vehicle pass him and saying to his spouse that the individual in question must be in a hurry.

He recalled a few observations and words exchanged following the collision, a few sentences spoken at the hospital with a woman and a conversation with his son when he got back home. [ 41 ] The Court has no knowledge whatsoever of the reasons for the amnesia. Is it due to the collision, to a pre-existing condition of the accused or simply to his desire not to remember? The Court has no idea, because no evidence was adduced in that regard. The Court does not even know whether the collision caused the accused to suffer a concussion. [ 42 ] In cross-examination, Mr.

Graham added that, prior to the events, he was in good physical and mental health, was not under any particular stress and did not suffer from depression or anxiety. Moreover, he did not take any medication, apart from a blood thinner. [ 43 ] Diane Graham, the accused's spouse, was heard.

She confirmed her spouse's testimony almost word for word, but had a somewhat better recollection of the events than her spouse. [ 44 ] She added that they were travelling on Highway 327 when, all of a sudden, between the Serres Arundel and the stop sign, although a vehicle was obviously waiting at the mandatory stop at the intersection of highways 327 and 364, her spouse did not slow down but abruptly accelerated, causing her to conclude that he had pressed on the wrong pedal.

She said that the accused pressed inadvertently on the accelerator instead of the brake. [ 45 ] She told the accused to slow down, but he did not answer. She concluded that he was no longer in control of himself. [ 46 ] She recalled having a sore neck after the collision, and the short conversation her spouse had with a first responder, who was opening the door on the driver's side of their vehicle and was told by the accused "You're breaking my door". [ 47 ] In cross-examination, she was asked for more information on the circumstances of the accident.

She testified that the collision was with the vehicle waiting at the mandatory stop and the damage was to the left side of that vehicle. So, Ms. Graham seemingly confused the two collisions, since the only vehicle that was struck on the left side was Mr.

Gariépy's Honda, which was moving at the time of the collision, not stopped at the intersection, at the time of what the parties called the small collision or first collision. [ 48 ] If the witness meant the collision with the vehicle stopped at the intersection, then she was referring to the victims' Ford Escort, which was struck from behind on the right side, not the left side. [ 49 ] The defence's case also included the filing of medical documents pertaining to the accused. [ 50 ] The first document, filed as Exhibit D-6, is a report by the accused's attending physician about his physical and neurological

state since 2005. The document concluded that there was no medical explanation for the accused's having left his foot on the accelerator at the time of the events. [ 51 ] The second document, filed as Exhibit D-7, is rather laconic and contains only one conclusion. The Court will cite the said conclusion here in extenso : My conclusion in the case of my patient, Mr Norman Graham, is that on June 29, 2010, he would have had a few seconds of confusion or a few seconds when information failed to register in his brain.

This situation can happen and remain unexplained by any other medical diagnosis. [ 52 ] It is on the basis of these facts, and of the admissions and, consequently, of the evidence as a whole, that the Court must rule on the issue here. Remarks about the evidence Relative to Dr. David Curtis [ 53 ] The Court has no idea of the basis for Dr. Curtis's conclusion (D-7), reproduced above. [ 54 ] Counsel for the defence skilfully argued that Dr. Curtis based his opinion on the contents of Exhibit D-6, but, having read that document, the Court finds that affirmation inexact.

Exhibit D-6 merely notes that there is no medical or physical explanation for the accused's having pressed on the accelerator, and D-7 refers to the confusion of a person out of touch with reality, because information did not register in his brain. [ 55 ] The Supreme Court previously ruled as follows on the probative force of an expert opinion: Before any weight can be given to an expert's opinion, the facts upon which the opinion is based must be found to exist. [1] [ 56 ] Not knowing, in the present case, on which facts the expert based his conclusion, the Court cannot and does not give any weight to it. [ 57 ] Furthermore, Dr.

Curtis's conclusion about the accused's confusion at the time of the event and about the failure of information to register in the accused's brain is evidence akin to automatism. [ 58 ] As Bastarache J. so aptly stated: To sum up, in order to satisfy the evidentiary or proper foundation burden in cases involving claims of automatism, the defence must make an assertion of involuntariness and call expert psychiatric or psychological evidence confirming that assertion. [2] [ 59 ] In the Court's view, the accused did not satisfy that preliminary evidentiary or proper foundation burden enabling the Court to examine such a defence for the purpose of assessing its merits.

At most, he established the possibility of it, which, ultimately, is pure speculation. Relative to Diane Graham [ 60 ] When cross-examined about the fact that she remembered some of what her spouse had said before the collision, during a relatively banal conversation, counsel for the prosecution asked the witness whether she had discussed the facts of the case with her spouse or her son prior to the hearing. [ 61 ] In the Court's view, the question has little bearing, as such a serious incident with consequences as tragic as a girl's death necessarily causes great commotion in a family.

Of course, they talked about it.

When asked the question, the witness said nothing and looked down, whereas, moments earlier, she had even smiled on occasion during her testimony. [ 62 ] Despite the prosecutor's having repeated the question, despite the objections of counsel for the defence, despite the Court's having intervened to ask the witness whether she had properly understood the question and despite a suspension of a few minutes to rule on the objection, the witness hesitated greatly before answering what was, in fact, a simple question and, in the end, reluctantly said that there might have been a few discussions. [ 63 ] The witness's attitude was clearly that of a person who had just been caught red-handed. [ 64 ] That fact, together with the fact that the witness remembered some things her spouse had said, almost exactly those he himself mentioned, along with the fact that the witness remembered that they had been travelling at 45 miles an hour but that, when re-examined by counsel for the accused, she could not say whether it was 45 kilometres an hour or 45 miles an hour, leaves the Court unable to determine whether the witness's testimony was based on discussions with her spouse or her son (who acted as resource person in the case for the defence) or whether it reflected what she herself saw. [ 65 ] The Court therefore has a great deal of reservation about that testimony and treats it with circumspection, since an unidentifiable portion of it is hearsay. [ 66 ] As regards Ms.

Graham's explanation that her spouse mistook the accelerator for the brake pedal as he approached the intersection where the car they hit was stopped, the Court does not believe it. [ 67 ] The explanation is more like an attempt to rationalize or explain the accused's action than an observation, which the witness in fact did not make.

[ 68 ] Ms. Graham did not see her spouse put his foot on the wrong pedal; she concluded that he did so because of her observations, the approach to the intersection, the vehicle stopped there, which they hit on the left side, and the request to slow down that went unanswered. To allow Ms. Graham’s observations, almost all of the testimony in this case would have to be set aside. [ 69 ] Mr.

Tremblay would be mistaken when he saw the prohibited passing manœuvre and the speed at which the accused’s vehicle was travelling as it went past the small electricity generating station—consequently, well before the event described by Ms. Graham occurred. [ 70 ] Mr. Lévesque would also be mistaken when he saw the vehicle of the accused make another high-speed passing manoeuvre, at the Serres Arundel, again before the accused saw the intersection and the vehicle which Ms.

Graham saw waiting at the mandatory stop at the intersection of highways 327 and 364. [ 71 ] In fact, on the basis of photos Dsc_8246 and 8247 at page 17 of Exhibit P-7, it is clear to the Court that the intersection cannot be seen from the Serres Arundel. The accused’s erroneous manœuvre therefore would have taken place later on, according to Ms. Graham’s testimony, so Mr. Lévesque would be mistaken. [ 72 ] Similarly, Mr. Auger could not have seen the vehicle go onto the shoulder at high speed, because the accused’s operation of the vehicle was adequate, according to Ms.

Graham, when he went past the Serres Arundel. [ 73 ] The Court has no reason to dismiss the unrelated witnesses’ testimony about Mr. Graham’s driving, testimony which clearly shows Ms. Graham’s misguided attempt to rationalize the accused’s act. [ 74 ] Moreover, one would have to believe that Mr. Gariépy’s vehicle was stopped at the intersection, contrary to the physical marks at the site of the first collision and contrary to the testimony of Mr. Gariépy and his sister. [ 75 ] The Court does not accept Ms.

Graham’s testimony, which, like the defence’s entire case, does not raise a reasonable doubt in the Court’s mind, considering the evidence as a whole. [ 76 ] In the Court’s assessment, the witnesses for the prosecution testified calmly, without exaggeration and without any major contradictions that could call into question their sincerity. Consequently, the Court finds their testimony highly credible and of great weight, subject to the following with respect to the expert for the prosecution.

Relative to the testimony of Bernard Ouellet [ 77 ] Bernard Ouellet is the accident scene reconstruction expert called by the prosecution.

He clearly testified that his expert opinion was in large part based on the physical evidence at accident scenes and, to a lesser extent, on the information gathered. [ 78 ] In addition, he stated just as clearly in his testimony that he was not interested in human factors contributing to road accidents, since, unlike experts in the other Canadian provinces and the United States, Québec experts do not handle civil claims, which are prohibited under the Automobile Insurance Act . [ 79 ] Despite the parties’ admission that Mr.

Ouellet is an accident scene reconstruction expert, his field of expertise clearly has nothing to do with human factors, and the Court gives little weight to his answers that are outside his field of expertise. [3] [ 80 ] Although the Court rules out the possibility of the accelerator's having been mistaken for the brake in the present case, it feels it must add that nothing relevant came out of the cross-examination of expert Ouellet when the attorney tried to coax him into acknowledging that, according to U.S. studies by a recognized body, individuals who believe they are pressing on the brake pedal will simply continue to press on the pedal concerned, because they believe it will slow the vehicle down even though they continue to accelerate. [ 81 ] That is undoubtedly a factual inference a person could make, but getting an expert who is outside his actual field of expertise to acknowledge it does not make such an inference more realistic. [ 82 ] For all of these reasons, and in accordance with W. (D.) , [4] the Court does not believe the evidence presented by the defence and it does not raise a reasonable doubt in the Court’s mind.

The remaining evidence [ 83 ] The Court must ask itself whether, on the basis of the evidence as a whole accepted by it, it is satisfied beyond a reasonable doubt that the offences were committed.

The Court bears in mind that an accused never has to prove his or her innocence and that, even though an accused decides to testify and mount a defence, the burden of demonstrating beyond a reasonable doubt each and every element of the offences alleged against the accused still lies with the prosecution. [ 84 ] So, what factual basis is left to the Court for ruling on the issues in dispute? [ 85 ] The accused was driving on a relatively narrow road with one lane for traffic in each direction.

He was travelling at a speed of at least 92 km/h, no doubt faster, based on the testimony of the expert, who evaluated that speed as the minimal speed at the time of the collision, and given the testimony of the other witnesses, who put the speed at approximately 100 km/h. At the time of the first observations of the witnesses, the speed limit was 70 km/h. [ 86 ] The first time the accused made a passing manoeuvre, there was a solid line and oncoming vehicles. That was the manœuvre described by Mr. Tremblay.

It was so dangerous that two vehicles had to drive onto the shoulder to avoid a head-on collision. [ 87 ] The accused’s vehicle continued on at high speed, whereas the limit was down to 50 km/h and his vehicle was about to enter, and did enter, a clearly indicated school zone. He drove onto the shoulder at a certain point, got back into his lane and carried out a

second illegal passing manœuvre—the one described by Mr.

Lévesque—at the Serres Arundel, where there was a solid line and two other vehicles were in the lane for traffic in the other direction. [ 88 ] The manœuvre forced the other two vehicles to swerve onto the shoulder, near the ditch, to avoid another head-on collision. [ 89 ] Despite the speed limit, despite the school zone, despite the presence of cars and pedestrians in the middle of the afternoon, despite the accused’s familiarity with the area and despite his arrival at the intersection of highways 327 and 364, where there is a mandatory stop sign, the accused continued on at high speed, with the result that the two collisions described by the witnesses occurred. [ 90 ] All of these manœuvres were made by a person who, as common sense dictates, intended the natural and probable consequences of his actions, as the higher courts have often pointed out. [ 91 ] Irrespective of the consequences of finding the accused to be guilty or not, the Court believes that the facts accepted clearly show, given the circumstances specific to the events central to this case, a marked departure from the acts of a reasonable person, and a prudent and cautious driver.

The Court is also satisfied beyond a reasonable doubt that, by acting thus, the accused showed a wanton and reckless disregard for the lives and safety of other persons, within the meaning of

section 219 of the Criminal Code . [ 92 ] Similarly, the Court believes that a reasonable person would necessarily be conscious of the risks inherent in the accused’s driving and would consider it a marked departure from the standard of reasonable care that would guide a reasonable person in the same circumstances. [ 93 ] The Court finds that the evidence establishes beyond a reasonable doubt the mens rea of the alleged offences of negligence, according to the modified objective test, reiterated by the Supreme Court in Beatty [5] and Roy . [6] [ 94 ] As for the causal link between the driving and the collisions, it is clearly established beyond a reasonable doubt, and the causal connection between the collision and the death and bodily harm is admitted. [ 95 ] The Court believes that the prosecution established beyond a reasonable doubt the accused’s guilt on the four charges but, given the rule prohibiting multiple convictions, the Court will hand down convictions only on the most serious charges, namely, those of criminal negligence causing death and bodily harm.

THEREFORE, THE COURT: [ 96 ] Declares the accused guilty of causing, due to criminal negligence while operating a motor vehicle, the death of T.O.H. (2000- 04-04); [ 97 ] Declares the accused guilty of causing, due to criminal negligence while operating a motor vehicle, bodily harm to Tricia Ouellet-Hobbs; [ 98 ] Orders a conditional stay of proceedings on the first and second counts, in accordance with the rule in Kienapple . [7] __________________________________ BRUNO LECLERC, J.C.Q. Attorneys: Mtre. Maxime Lacoursière, for the prosecution Mtre. Isabelle Schurman and Mtre.

Rose-Mélanie Drivod, for the accused Date of hearing: June 2 to 5, 2014