Her Majesty the Queen - v. -, 2018 SKPC 65

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2018 SKPC 065 Date: November 7, 2018 Information: 24522495 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Kiel Stewart Appearing: R. Ritter and J. Knox For the Crown J. Watson and E. Casselman For the Accused JUDGMENT S.L.

METIVIER , J INTRODUCTION [ 1 ] Kiel Stewart is charged with two counts of dangerous driving causing death, one count of dangerous driving causing bodily harm, two counts of impaired driving causing death, one count of impaired driving causing bodily harm and two counts of driving while his blood alcohol level exceeded the legal limit causing death, and one count of driving while his blood alcohol level exceeded the legal limit causing bodily harm.

[ 2 ] This action arises out of a single vehicle accident that happened on October 15, 2016, on Highway 2 (the “ Highway ” ) north of Young, Saskatchewan, which resulted in the tragic deaths of Brett Busse and Adam Powell, and bodily harm to David McCarthy. [ 3 ] After consuming numerous drinks in a hotel room and at TB ’ s Bar and Grill (the “ Bar ” ) in Watrous, Mr. Stewart, Mr. McCarthy, Mr. Powell and Ms. Busse left in a black Mercedes-Benz AMG (the “ vehicle ” ) driven by Mr. Stewart. Several witnesses saw the vehicle on the Highway between Watrous and Young travelling at very high rates of speed.

Just north of Young, the vehicle crossed over the southbound lane, entered the west ditch, struck an approach, and rolled. [ 4 ] Mr. Stewart does not dispute that he was driving the vehicle when it left the Bar, and concedes that he is guilty of dangerous driving, impaired driving, and driving while over the legal limit. However, Mr. Stewart testified that prior to the accident, he pulled the vehicle over to the side of the highway, and switched places with Mr. McCarthy. He therefore denies that his driving caused the death or bodily harm of the other occupants. [ 5 ] The Crown ’ s principle theory is that Mr.

Stewart was driving the vehicle when the accident occurred. Alternatively, the Crown argues that if the switch occurred, Mr. Stewart nevertheless remained in care and control of the vehicle, or is liable as a party to the offence by aiding and abetting Mr. McCarthy in the commission of the offences. FACTUAL BACKGROUND [ 6 ] After working the night shift from 7:00 p.m. to 7:00 a.m., Mr. Stewart, Mr. McCarthy and Mr. Powell returned to their accommodations at the Manitou Hotel, where they gathered in Mr. Stewart ’ s room and had four beer each. Mr. Stewart sent a text message to Ms.

Busse, inviting her to join them. Ms. Busse brought a case of cider beer, which they shared before heading to the Bar. [ 7 ] According to the security video from that Bar, they arrived at 10:02:52 hours and consumed about eight rounds of drinks in a little over an hour. The bartender, Kimberly Martell, testified that they seemed “ slightly drunk ” when they arrived and were all “ drunk ” or “ fairly drunk ” when they left. [ 8 ] The security video shows Mr. Stewart getting into the driver ’ s seat of the vehicle at 11:16:37 hours. Mr. McCarthy got into the front passenger seat, Mr.

Powell got into the rear seat on the driver ’ s side, and Ms. Busse got into the rear seat on the passenger ’ s side. The vehicle left the parking lot at 11:17:44 hours. [ 9 ] Mr. Stewart testified that they were going to Saskatoon to get cocaine for Mr. McCarthy. He decided he should drive because he “ felt fine ” and Mr. McCarthy was “ more drunk ” than he was. Despite what he thought at the time, Mr. Stewart acknowledged in cross-examination that he was not fine to drive and was, in fact, highly impaired. [ 10 ] To put the evidence into context, the distance between Watrous and Young is 23.4 kilometres.

The speed limit through Watrous onto the Highway gradually increases from 40 to 60 to 80, and finally to 100 kilometres per hour. The highway is fairly straight, with a slight right hand curve south of Young, and another one just north of Young. The speed limit drops to 80 kilometres per hour through Young, and then goes back to 100 kilometres per hour shortly before the curve where the accident occurred. [ 11 ] Mr. Stewart stated that as he was driving north on the highway he passed a black car like it was standing still.

When he looked down at the speedometer, he saw that he was driving 240 kilometers an hour and told Mr. McCarthy that he did not want to drive anymore. The crucial parts of his testimony reads as follows: Q Okay. And what did you do?

A I told Dave I didn’t want to drive, and he said he didn’t want to drive he said I heated the car up, and I said, Well, the whole drive is because you want this cocaine, so I’m pulling over and you’re going to drive. So then I drove up –there’s a right-hand – little right-hand turn, I took that right-hand turn because it was enough to get ahead of that car, so I don’t read the licence plate. We pulled over and switched seats and kept going. Q Okay. Sorry, what was that about the licence plate? A We got far enough ahead of that vehicle so they wouldn’t see the licence plate.

Q Why were you worried about that car seeing the licence plate? A Well, we were all drinking, and I just passed the car doing 240 kilometres an hour. Q All right. Okay. How long did it take you to stop? A No more than ten seconds. Q How long did it take you to switch places with Dave? A It would be no more than ten seconds for that. Q How long did it take Dave to get back up to highway speed? A It was, like, ten seconds. That car is pretty – intense. Q Okay. So then what happened? A Then we kept on driving. We were all just talking among ourselves.

And then it was – I don’t know how long it would’ve been we were driving, a few minutes, and then Brett told Dave to slow down, there was a turn coming up. And when he went around the turn is when we lost control. Q Okay. So then what happened? A Then the next thing, I woke up in the hospital. [ 12 ] Four witnesses testified that they saw the vehicle travelling on the highway between Watrous and Young. Jeffrey Nickel was about halfway between Watrous and Young when he glanced in his mirror and saw the vehicle approaching quickly behind him.

The vehicle passed him at a very high rate of speed, which he estimated to be somewhere between 160 and 200 kilometers per hour. Mr. Nickel called 911 to report the vehicle at 11:25 a.m., and remained on the 911 call until he got to Young. He assumed that something was going to happen given the speed of the vehicle, the type of driving, and how out of control it seemed.

He estimated that roughly three to four minutes passed from when he called 911 to when he came across the accident scene just north of Young. [ 13 ] Cindy Huber was driving from Watrous to Young when she noticed the vehicle in her rear view mirror. The vehicle passed her on the highway going about 150 to 160 kilometers an hour. She lost sight of the vehicle by the time she got to the right hand curve going into Young, but recognized it when she got to the accident scene just north of Young. [ 14 ] Cora Goodpipe and Hally Rose saw the accident happen.

They testified that the vehicle passed them on the highway at the right hand curve just north of Young. Ms. Goodpipe estimated the vehicle was going about 120 kilometres per hour when it passed them. She stated that the vehicle flipped three times and smashed into an embankment by the railroad tracks. She told her husband, Hally Rose to call 911. Mr. Rose testified that the vehicle was going at least 140 kilometres per hour when it caught the gravel on the shoulder of the road, flipped through the air and smashed into the railroad embankment. Mr. Rose called 911 at 11:27 a.m. to

report the accident. [ 15 ] Trevor Sodberg, Nathan Ciesielski and Cameron Rowan, all members of the Young Volunteer Fire Department, were called out to respond to the accident. Mr. Sodberg estimated that it took 15 minutes or less to arrive at the scene of the accident. A Halligan bar was used to extract the windshield. Once the glass was rolled back, Mr. Sodberg observed Mr. McCarthy crouched over on his feet in the front seat, and brought him through the windshield. After Mr. McCarthy was removed, Mr. Sodberg observed Mr.

Stewart in the back portion of the car with his feet under him and took him out through the front windshield as well. [ 16 ] Andrew Matheson, a paramedic, testified that it was difficult to assess Mr. McCarthy at the accident scene as he was combative and angry, which suggested to Mr. Matheson that he had suffered a head injury. He enlisted the assistance of Constable Diduck to get Mr. McCarthy in the ambulance. [ 17 ] Constable Friesen assisted the EMS staff in the ambulance with Mr. Stewart and Mr. McCarthy, who was becoming increasingly combative with EMS staff.

When Constable Friesen approached the ambulance door, he noticed that Mr. Stewart was wearing a gray and orange shoe on one foot, but had no shoe on the other foot. At 13:05 hours he noted that Mr. Stewart appeared dazed and in shock. He was responsive to questions, but easily confused. Constable Friesen made note of the following verbal statements made by Mr. Stewart throughout the day: ∙ At 13:51 hours he told the ambulance workers that he was sitting in the back of the vehicle.

He believed that his right shoulder hurt from the seat belt; ∙ At 14:01 hours he stated that no one else was in the vehicle with him and Dave; ∙ At 14:50 hours he stated that he was unsure of who else was in the Vehicle; ∙ At 19:21 hours a medical resident at the Royal University Hospital asked Mr. Stewart if he knew who was driving and responded that he did not remember; ∙ At 20:21 hours Cst. Friesen asked Mr. Stewart if he would like to provide a statement about the accident.

He responded that he did not wish to provide a statement at that time as he did not remember anything about the accident; ∙ At 22:10 hours, a nurse asked Mr. Stewart about the accident and if he remembered anything. He told the nurse that he did not remember anything since leaving work yesterday. [ 18 ] Constable Greenslade conducted a forensic scene investigation and was qualified to give evidence in the area of forensic accident reconstruction.

His observations and conclusions are summarized as follows: ∙ Two airbags deployed in the driver ’ s compartment of the vehicle – one from the steering wheel, and one from the leg compartment; ∙ There was a grey and orange Nike running shoe found in the floor area of the driver ’ s compartment; ∙ At the time of his analysis of the seatbelt, the driver ’ s seatbelt and front right passenger ’ s seatbelt were extended and

unbuckled. There was webbing evidence of chaffing and the belts were pinched in the D ring. There was also evidence of striations on the latch plate.

Based on these observations, Constable Greenslade concluded that the driver ’ s seatbelt and front right passenger ’ s seatbelt were worn at the time of the collision; ∙ The vehicle was travelling at a minimum speed of 144 km/hour at the onset of the collision; ∙ The collision was caused by the actions of the driver as he attempted to negotiate the curve at an elevated speed and in an attempt to do so applied steering to the right that further caused the loss of control that he was not able to recover from; ∙ Based on the evidence that he reviewed, Constable Greenslade could not come to any conclusion as to who was driving the vehicle at the time of the accident. [ 19 ] Malcolm Gibson, an accident reconstructionist called by the defence, also concluded that he could not determine who was driving the vehicle at the time of the accident.

Mr. Gibson acknowledged during cross-examination, that driving at 165 kilometres per hour while intoxicated is clearly dangerous. [ 20 ] On October 16, 2016, Constable Diduck attended at the Royal University Hospital to remand Mr. Stewart. He was present in the hospital room when Mr. Stewart’s girlfriend asked Mr. Stewart what happened. Mr. Stewart responded that he did not know what happened and then asked her how her parents were. [ 21 ] Constable Diduck obtained a blood sample from Mr. Stewart. Forensics reports marked as Exhibits P-8 and P-9, show Mr.

Stewart ’ s blood alcohol content to be 134 milligrams percent when the blood sample was taken at 14:41 hours, and between 166 and 198 milligrams percent at the time of driving. [ 22 ] Constable Diduck also seized the driver’s steering wheel airbag for DNA evidence. According to the forensic report filed as Exhibit P-7, four samples of blood and other genetic material from the airbag. Only one of the samples obtained from the airbag matched the DNA profile of the accused. [ 23 ] According to the time stamp on the security video, the vehicle left the bar at 11:17:44 hours.

The accident was reported to 911 at 11:27 a.m. Constable Greenslade determined that the distance from the bar to the accident scene is 23.4 kilometres.

He prepared the following mathematical calculations of average speed of the Vehicle based on a constant distance, and variable time: ∙ 140 kilometres per hour in 10 minutes ∙ 155 kilometres per hour in 9 minutes ∙ 175 kilometres per hour in 8 minutes ∙ 200 kilometres per hour in 7 minutes [ 24 ] Because these are mathematical calculations for average constant speed, they do not account for speed variables that could arise from such things as stopping, starting, or changes in the speed limit.

If, at some point, the speed of the vehicle fell below the average speed, it would necessarily have to make up that time by driving above the average speed in order to cover the same distance in the same amount of time. [ 25 ] Gavin Manes provided expert testimony concerning the accuracy of the time stamp on the security video. He testified that time clocks in electronic devices, like the digital video equipment in this case, tend to drift up or down over time due to external factors such as heat and electrical load.

Modern cell phones are usually accurate to within 30 seconds as they are designed to synchronize their time periodically with cell phone towers. As video security equipment is configured to synchronize at various time

intervals, the accuracy of the time stamp is dependent on how the security equipment was configured. Mr. Manes could not verify theaccuracy of the time stamp in this case because the video equipment was not available for him to examine. He stated that the time stampcould be off by as little as thirty seconds or as much as two minutes. [26] The owner of the bar, Lane Manson, testified that he installed the security system four or five years ago when thebar was renovated. Mr.

Manson testified that he believes the time stamp is “fairly accurate” because a few days before he testified, hechecked the time stamp against his computer or cell phone. I attach little weight to Mr. Manson’s testimony about the accuracy of thetime stamp given his evidence that the hard drive was changed at some point, probably sometime before the incident, because it wasobsolete. [27] Given the testimony of Mr. Manson and Mr.

Manes, it would be unsafe to rely on the accuracy of the time stampon the security video at the bar except to say that it is probably accurate to within a couple of minutes. [28] The following further admissions were made by an Agreed Statement of Facts: ∙ Brett Busse died as a result of the injuries she sustained during the motor vehicle accident; ∙ Adam Powell died as a result of the injuries he sustained during the motor vehicle accident; ∙ David McCarthy sustained bodily harm from the injuries he sustained during the motor vehicle accident, and has no memory ofthe incident as a result of those injuries.

ANALYSIS [29] The Crown must prove all elements of the offences beyond a reasonable doubt. The judge may believe some, noneor all of the testimony of any witness, including that of an accused. The judge must consider the evidence in its totality and decidewhether the Crown has proven every element of the offence beyond a reasonable doubt (R v JHS, 2008 SCC 30, at paras 8 - 13, [2008] 2SCR 152, paras 8-13).

In a case like this one where credibility is the central issue, the judge must also apply the legal principlesidentified by the Supreme Court of Canada decision of R v W(D), (SCC), [1991] 1 SCR 742. [30] The Crown’s evidence that Mr. Stewart was driving the Vehicle when the accident occurred is circumstantial. Inorder to convict on the basis of circumstantial evidence, a judge must be satisfied beyond a reasonable doubt that the only rationalinference that can be drawn from the circumstantial evidence is that the accused is guilty (R v Villaroman, 2016 SCC 33, at para 18,[2016] 1 SCR 1000).

Has the Crown proven beyond a reasonable doubt that the accused was driving the vehicle when the accident occurred? [31] While I accept some of Mr. Stewart’s evidence, I do not believe his testimony that he switched places with Mr.McCarthy, nor does his evidence raise a reasonable doubt. The credibility of his evidence on this issue is seriously undermined by thetiming of events, concerns relating to his memory, and common sense. [32] Mr. Nickle called 911 at 11:25 a.m., which he estimated to be within thirty seconds of when he saw the vehicle. Ms.

Huber testified that the vehicle passed her and was out of her sight before she got to the curve south of Young. As Ms. Huberarrived at the accident scene before Mr. Nickel, Mr. Stewart must have passed Ms. Huber after he passed Mr. Nickel. Two minutes afterMr. Nickle called 911, Hally Rose called 911 to report the accident. Accordingly, approximately two to two and a half minutes passedfrom when Mr. Nickel saw the vehicle to when the accident happened.

[ 33 ] Assessing Mr. Stewart ’ s version of what happened within the context of the other evidence, the following events would have had to occur during that two to two and a half minute time interval on a relatively small stretch of highway: a conversation between Mr. Stewart and Mr. McCarthy about who should drive the vehicle; Mr. Stewart passing Ms. Huber ’ s vehicle, and driving far enough ahead of it to be out of her sight; Mr. Stewart stopping the vehicle and switching places with Mr. McCarthy without being detected; Mr. Stewart and Mr. McCarthy putting on their seatbelts; Mr.

McCarthy driving long enough for some further conversation to occur in the vehicle before the accident. Mr. Stewart testified that it took no more than ten seconds for him to stop the vehicle, no more than ten seconds to switch places with Mr. McCarthy, and no more than ten seconds for Mr. McCarthy to accelerate back up to highway speed. He stated in cross-examination that “ there would ’ ve been two peel marks from when he (Mr. McCarthy) took off again ” .

According to the testimony of the defence expert, Malcolm Gibson, those numbers are possible; however, when considered along with all the other evidence, the possibility that all of these things happened over a small stretch of the highway in such a short time without detection by any of the witnesses is highly unlikely. [ 34 ] According to Mr. Stewart ’ s evidence, he experienced both a temporary and permanent memory gap. Regarding the temporary memory gap, he stated that he could not remember being at work or the events leading up to the accident, until he stopped taking morphine about three weeks later.

As to his permanent memory loss, Mr. Stewart says that he continues to have no memory from the time of the crash to the time he woke up and saw his girlfriend in the hospital. [ 35 ] The evidence concerning Mr. Stewart ’ s mental status immediately following the accident is mixed. Ms. Joyherauf testified that when she assessed Mr. Stewart at the scene of the accident he was quiet and cooperative and gave appropriate verbal responses. She performed a Glasgow Coma Assessment and scored him at 15, meaning he was oriented and able to follow commands. On the other hand, Cst. Friesen noted at 13:05 that Mr.

Stewart was responsive to questions, but easily confused. [ 36 ] It is not surprising that Mr. Stewart would be dazed and confused for a period of time, given the severity of the accident and his level of intoxication. However, it is deeply troubling that Mr. Stewart has significant gaps in his memory, yet is able to testify with surprising detail about exculpatory events, despite having a blood alcohol content of 166 and 198 milligrams percent, and having no reason to pay particular attention to them before the accident. [ 37 ] Mr.

Stewart testified that he became worried about being behind the wheel of the vehicle when he passed a black car and suddenly realized he was doing 240 kilometres per hour. Common sense dictates that someone driving 240 kilometres per hour should not need a speedometer to tell them they were going way too fast. Mr. Stewart ’ s expressed concern about driving the vehicle, presumably for safety reasons, is inconsistent with his decision to drive the vehicle when his ability to drive was highly impaired by alcohol, his decision to drive at more than double the legal speed limit, his insistence that Mr.

McCarthy drive the vehicle, when he believed that Mr. McCarthy was more drunk than he was, and his failure to take his foot off of the gas pedal to slow down once he realized how fast he was going. What is consistent is the driving behaviour observed by witnesses both before and after the location where Mr. Stewart says he and Mr. McCarthy switched places. [ 38 ] I conclude that Mr. Stewart ’ s evidence about switching places with Mr.

McCarthy is not credible and I reject his evidence. [ 39 ] The two accident reconstruction experts who testified in this case could not determine who was driving the vehicle when the accident occurred. However, the experts did not have the benefit of the video from the bar, and the evidence of the other witnesses. [ 40 ] Mr. Stewart was driving the Vehicle when it left the Bar. He was driving the vehicle when it passed Mr. Nickel and Ms. Huber. The driving conduct that witnesses observed at various points along the highway and reported is the same type of conduct that resulted in the accident.

No reasonable inference can be drawn from the fact that first responders observed Mr. McCarthy in the front part of the vehicle, and Mr. Stewart in the back part of the vehicle, considering the video from the bar, Mr. Stewart’s evidence that both he and Mr. McCarthy were in the front of the vehicle when the accident happened, the length of time that passed before the first responders arrived on scene, and Mr. McCarthy’s combativeness. The results of the DNA testing in this case are neutral. The fact that Mr.

Stewart’s shoe was found in the leg area of the driver’s compartment is some evidence which suggests that he was the driver. The only reasonable inference that can be drawn from the totality of the evidence is that Mr. Stewart was driving the vehicle when the accident occurred. [ 41 ] I am satisfied that the Crown has established all elements of the offences beyond a reasonable doubt. I therefore find Mr. Stewart guilty of all nine counts.

[ 42 ] Given my conclusion that Mr. Stewart was the driver, I do not need to consider the alternative arguments raised by the Crown. _______________________ S.L. Metivier, J