R. v. Tweedie, 2022 NSSC 75

SUPREME COURT OF Nova Scotia Citation: R. v. Tweedie , 2022 NSSC 75 Date: 20220325 Docket: CRI500387 Registry: Sydney Between: Her Majesty the Queen v. Colin Hugh Tweedie DECISION Judge: The Honourable Justice Mona Lynch Heard: February 1, 2, 3, 7, 8, 9, 10, 2022, in Sydney, Nova Scotia Counsel: John MacDonald and Nicole Campbell, for the Crown Tony Mozvik QC, for the Accused By the Court: Background [ 1 ] The events on Black Rock Road on July 11, 2019, changed many peoples lives forever. Talia Forrest lost her life, and her parents lost their daughter. Others lost a friend or a loved one.

The people who lived on or near Black Rock Road on July 11, 2019, witnessed the after math of the collision that killed Talia Forrest and they will remember that every time they pass the area where she died. The accused will live every day with the burden and guilt that he was driving the vehicle that collided with Talia Forrest and resulted in her death. As the accused said in his note to Talia Forrest’s family, he will never be able to forgive himself. A criminal trial cannot bring Talia Forrest back nor can it heal the pain.

A criminal trial is about one thing and that is whether the Crown has proven the charges against the accused to a high standard, beyond a reasonable doubt. [ 2 ] On July 11, 2019, at approximately at 21:42 a motor vehicle driven by the accused, Colin Hugh Tweedie, collided with Talia Forrest while she was riding a bicycle with a friend on Black Rock Road, Nova Scotia. The accused did not stop at the scene of the collision. [ 3 ] At 21:43 a 911 call was received. Talia Forrest was located unresponsive, and CPR was administered by the mother of Talia’s friend.

Paramedics arrived at approximately 22:00 and took Talia Forrest to the Cape Breton Regional Hospital. At 22:46, 10-year-old Talia Forrest was declared deceased. [ 4 ] People who resided on Black Rock Road heard a loud noise and went outside to explore the cause. Noelle MacLean, who lived at 135 Black Rock Road, encountered Talia’s friend who was screaming for help saying that her best friend was hit by a car, and

she thought her friend was dead. Noelle MacLean started looking for Talia Forrest with a flashlight. She found flip flops on the road and a bicycle tire in the grass between her house and her neighbours’ house. She sent Talia’s friend home to get her parents and flashlights. Noelle MacLean picked up a bumper on the side of the road and then put it down. In her statement to police, Noelle MacLean said that she saw someone pick up a flip flop. Talia’s friend told Noelle MacLean that the vehicle which struck Talia Forrest was a white car and she described it as a Honda Civic.

Children started to gather, and Noelle MacLean sent them home to get parents and flashlights. [ 5 ] Noelle MacLean discovered Talia Forrest on an embankment between her house and the house of her neighbour to the north. Talia’s friend returned with her mother, and the friend’s mother started performing CPR until the ambulance arrived and the paramedics took over. [ 6 ] David MacLean was walking south on the dirt portion of Black Rock Road to go to babysit for a cousin. He found a pink bicycle lying across the middle line of the road. David MacLean moved the bicycle to the right side of the road onto the gravel.

He heard sirens and a representative from the fire department told him to remain where he was until police officers spoke to him. The police spoke to him, and he retrieved the bicycle from the ditch where it had slid. [ 7 ] Police arrived after Talia Forrest had been take to the hospital. Other first responders arrived at the same time or shortly before the ambulance. When the RCMP officers arrived they were provided information that led them to the accused’s home where they found the beige coloured Nissan Xterra with significant damage to the front of the vehicle.

The accused’s home was less than two kilometers from what has been described as the scene of the collision. RCMP members passed a man and women on the road when they were on their way to the accused’s home. The man and women were later identified as the accused and his then girlfriend, Beth Hart. [ 8 ] The accused and his girlfriend arrived back at the home of accused not long after the police arrived. Initially both the accused and the accused’s girlfriend said that the girlfriend was driving the Nissan. The accused also said that they thought that she had hit a deer.

The police officers present smelled alcohol coming from the accused. The accused and his girlfriend were separated and placed in the rear seat of two different police vehicles. The accused was taken to the Baddeck detachment of the RCMP where he was cautioned, and two samples of his breath were taken. The Crown is relying on the second breath sample taken at 01:51 on July 12, 2019, with a result of 60 milligrams of alcohol in 100 millilitres of blood.

The Certificate of a Qualified Technician was entered into evidence. [ 9 ] Physical debris, paint chips, and a bumper, found at the scene of the collision matched the 2004 Nissan Xterra. The Nissan had extensive damage to the front end of the vehicle and the two front airbags had been deployed. [ 10 ] DNA samples taken from the front of the Nissan matched Talia Forrest. [ 11 ] While at the Baddeck detachment of the RCMP on July 12, 2019, the accused admitted that he was the driver of the Nissan Xterra and he said that he thought he had struck a deer.

The accused said that he did not stop because he was close to his home, and he did not want to be broken down on the side of the road. [ 12 ] The accused is charged with, on or about the 11 th day of July 2019, at or near Black Rock, Nova Scotia that he did: 1. Operate a conveyance in a manner that was dangerous to the public and thereby caused the death of Talia Forrest contrary to

Section 320.13(3) of the Criminal Code of Canada . 2. Within two hours of ceasing to operate a conveyance have a blood alcohol concentration that was equal to or exceeding eighty milligrams of alcohol in one hundred millilitres of blood and thereby caused the death of Talia Forrest contrary to

Section 320.14(3) of the Criminal Code of Canada . 3. Within two hours of ceasing to operate a convenance and knowing, or being reckless to whether, the conveyance had been involved in an accident with a person or other conveyance, and knowing at the time of the failure, or being reckless as to whether the accident caused the death of another person failed without reasonable excuse to stop the conveyance, give their name and address and, if any person has been injured or appeared to require assistance, offer assistance, contrary to

Section 320.16 of the Criminal Code of Canada . 4. Willfully obstruct James Dollard a peace officer to wit a police constable for the Nova Scotia RCMP engaged in the execution of his duty to investigate a fatal hit and run collision by telling James Dollard that another person was driving the conveyance that caused the collision contrary to

Section 129 (

a) of the Criminal Code of Canada . [ 13 ] The trial started on February 1, 2022, and finished on February 10, 2022. The Crown called 15 witnesses and submitted 29 exhibits. No evidence was presented on behalf of the accused. [ 14 ] On February 7, 2022, the accused entered a guilty plea to count 4, willfully obstructing a peace officer in the execution of his duty. An agreed statement of facts was entered into evidence. The accused agreed that on July 11, 2019, he stated to Constable James Dollard that Beth Hart was driving the vehicle and they thought they hit a deer.

The accused repeated that assertion at the Baddeck RCMP detachment. The accused later advised the police that he was driving, and that Beth Hart was not in the vehicle with him. The accused was found guilty of wilfully obstructing a peace officer in the execution of his duty contrary to s. 129 (

a) of the Criminal Code of Canada . ISSUES 1. Has the Crown proven beyond a reasonable doubt that Colin Hugh Tweedie on or about the 11 th day of July 2019, at or near Black Rock, Nova Scotia did operate a conveyance in a manner that was dangerous to the public and thereby caused the death of Talia Forrest contrary to

Section 310.13(3) of the Criminal Code of Canada ? 2. Has the Crown proven beyond a reasonable doubt that Colin Hugh Tweedie on or about the 11 th day of July 2019, at or near

Black Rock, Nova Scotia did within two hours of ceasing to operate a conveyance have a blood alcohol concentration that was equal to or exceeding eighty milligrams of alcohol in one hundred millilitres of blood and thereby caused the death of Talia Forrest contrary to

Section 320.14(3) of the Criminal Code of Canada ? 3. Has the Crown proven beyond a reasonable doubt that Colin Hugh Tweedie on or about the 11 th day of July 2019, at or near Black Rock, Nova Scotia did within two hours of ceasing to operate a convenance and knowing, or being reckless to whether, the conveyance had been involved in an accident with a person or other conveyance, and knowing at the time of the failure, or being reckless as to whether the accident caused the death of another person failed without reasonable excuse to stop the conveyance, give their name and address and, if any person has been injured or appeared to require assistance, offer assistance, contrary to

Section 320.16 of the Criminal Code of Canada ? ANAYLSIS [ 15 ] Colin Hugh Tweedie has entered not guilty pleas to the three remaining charges, and he is presumed innocent of those charges. A judge in a criminal trial is not attempting to resolve the broad factual question of what happened ( R. v. Mah, 2002 NSCA 99 , para. 42 ). The Crown must prove each element of an offence, beyond a reasonable doubt, which is a high standard. If the Crown fails to do so, the accused must be acquitted.

The burden of proof remains with the Crown and does not shift to the accused. [ 16 ] In the present case, the accused has agreed that he drove the vehicle which was in a collision with Talia Forrest and caused her death. He also admits that he did not stop at the scene of the collision. Those two admissions by the accused do not answer the question as to whether or not he is guilty of the offences with which he is charged. To determine whether or not the accused is guilty I must determine the facts and apply the law to those facts. It is not enough that I find that the accused is probably guilty.

A finding of guilt beyond a reasonable doubt lies “much closer to absolute certainty that to proof on a balance of probabilities” ( R. v. Starr, 2000 SCC 40 , para. 242 ).

It is a real doubt, “not an imaginary or frivolous one” ( Starr , para. 92 ). 1 Has the Crown proven beyond a reasonable doubt that Colin Hugh Tweedie on or about the 11 th day of July 2019, at or near Black Rock, Nova Scotia did within two hours of ceasing to operate a conveyance have a blood alcohol concentration that was equal to or exceeding eighty milligrams of alcohol in one hundred millilitres of blood and thereby caused the death of Talia Forrest contrary to

Section 320.14(3) of the Criminal Code of Canada ? [ 17 ] The charge of driving with a blood alcohol concentration of 80 milligrams of alcohol or more in one hundred millilitres of blood causing the death of Talia Forrest will be dealt with first. [ 18 ] The elements of the offence that the Crown must prove beyond a reasonable doubt are: (

a) That Colin Hugh Tweedie operated a conveyance; (

b) That within two hours of ceasing to operate a conveyance, Colin Hugh Tweedie had a blood alcohol concentration that was equal to or exceeded 80 mg of alcohol in 100 ml of blood; and (

c) That Colin Hugh Tweedie’s operation of a conveyance with a blood alcohol concentration that was equal to or exceeded 80 mg of alcohol in 100 ml of blood caused or was a significant contributing cause of the collision which resulted in the death of Talia Forrest. [ 19 ] The accused has agreed that he was driving the vehicle which was in the collision with Talia Forrest. [ 20 ] The Crown is relying on the sample of the breath of the accused taken at 01:51 on July 12, 2019, with a result of 60 milligrams of alcohol in 100 milliliters of blood shown on the Certificate of a Qualified Technician which was entered into evidence by consent.

The breath sample was taken over four hours after the time of the collision. [ 21 ] The Crown did not rely on the presumption pursuant to s. 310.31(4) of the Criminal Code , they relied on expert evidence. [ 22 ] The Crown called Christine Frenette, who was qualified as an expert to provide opinion evidence on: (

a) the absorption, distribution, and elimination of alcohol in the human body; (

b) the extrapolation and

interpretation of alcohol concentrations; (

c) the effect of alcohol on individuals and on their ability to operate a motor vehicle; and (

d) the theory and the operation of breath testing instruments and screening devices. Ms. Frenette provided a written report as well as viva voce evidence. [ 23 ] Using the result of 60 mg in 100 ml of blood at 01:51, Ms. Frenette determined that the blood alcohol concentration of an individual at 21:42 would have been between 102 and 143 mg in 100 ml of blood. If this extrapolation is accepted, the accused would be found to have a blood alcohol concentration over 80 mg. However, the calculation provided by Ms. Frenette assumed that no alcohol was

consumed in the 30 minutes prior to the time of the collision. If alcohol was consumed during the 30 minutes, the calculated bloodalcohol concentration would be too high by an amount proportional to the amount of alcohol consumed. Ms.

Frenette’s evidence was thatfor a male the size of the accused to have had a blood alcohol concentration of 79 mg at 21:42 with the 60 mg reading at 01:51 theywould have to have in their stomach, unabsorbed, 0.9 to 2.5 bottles (341ml) of 5% beer. [24] The Crown provided me with cases regarding “bolus drinking”, which I understand is generally used to describe theconsumption of large quantities of alcohol immediately or shortly before driving. In the absence of something on the record suggestingthe contrary, a court can resort to the common sense inference that such drinking is a relatively rare phenomenon (R. v.

Paszczenko, 2010ONCA 615, para. 27). I would note that it was not a large quantity of alcohol but .9 of a beer which the accused would have had to havebeen consumed in the 30 minutes in question to obtain a blood alcohol concentration under 80 mg. In R. v. Grosse, (ONCA), which was referred to by the Crown, six beer or nine ounces of 40% alcohol, would have been necessary. [25] The onus is on the Crown to prove the facts underlying Ms. Frenette’s opinion, including the assumptions upon which theexpert relies (Paszczenko, para. 21).

The accused does not have to convince the trier of fact of anything but simply point to someevidence to show that the issue of bolus drinking is alive on the record. It is not a persuasive burden but an evidential burden(Paszczenko, paras. 34 and 35). [26] The accused told the officers that he had his last beer at 21:30 on the night in question. If true, Ms. Frenette testified that theblood alcohol concentration of the accused at the time of the collision could have been below 80 mgs.

The last beer consumed by theaccused was a 5% beer. [27] The evidence regarding the accused’s consumption of alcohol on the day in question comes from three witnesses, including theaccused himself. Some of the accused’s movements were captured on a video.

The accused said that he consumed four to five beersbetween approximately 14:30 and 21:30 on July 11, 2019, with his last beer being consumed around 21:30. [28] The other evidence regarding the accused’s drinking alcohol prior to the collision came from David Edwards and Leah Luker.David Edwards testified that the accused and his girlfriend came to the home where he was residing with his then partner around 21:15.His then partner, Leah Luker, and the accused’s girlfriend, Beth Hart, were friends. David Edwards was outside working on a trailer.

Theaccused asked David Edwards if he wanted to have a few games of darts and hang out. Beth Hart decided she wanted to go home. Theaccused and Beth Hart left, and the accused returned about five or ten minutes later. David Edwards and the accused went into the barnand started playing darts. The accused opened a beer within a few minutes and the bottle was empty when he left. They played darts for20 to 25 minutes. David Edwards testified that each game of darts would take five to ten minutes. The accused drank one beer and DavidEdwards could say nothing about the accused’s pattern of drinking.

Leah Luker arrived home and they hung out for a few minutes. LeahLuker was hungry, and David Edwards had to barbeque the meat for supper. The accused left 20 to 30 minutes after he arrived. DavidEdwards and Leah Luker were preparing supper and heard sirens. David Edwards was a member of the volunteer fire department in BigBras d’or and he went to the fire department to find the trucks gone. Using an app on his phone he received a message that there had beena pedestrian accident on Black Rock Road. He and Leah Luker went to the scene of the accident.

David Edwards estimated that thedriving time from his house to the accident scene would be two or three minutes. [29] Leah Luker testified that she was out and came home at 20:40 or 20:45 and David Edwards and the accused were hanging out,playing darts, and having a beer. She went in to say hello and ask about the accused’s girlfriend. Leah Luker saw the accused drinking abeer when she first got home. Leah Luker went into the house to start supper and while waiting for water to boil she went back out to thebarn where the accused and David Edwards were and had a conversation with them.

She estimated that the accused was there for 20 to30 minutes from the time she got home. Not long after David Edwards said the accused was gone, she heard sirens go by. DavidEdwards said it was a pedestrian accident on Black Rock Road and her mind went to the accused. Leah Luker went to the scene of theaccident with David Edwards, and she told a police officer that the accused was driving the vehicle. Leah Luker testified she left thescene at about 22:30 after she spoke to the police officer.

Leah Luker said the accused was at her home from 20 to 30 minutes on direct.In her statement to police, she said he was there 20 minutes and on cross-examination she said it was probably closer to 40 minutes thatthe accused was at her home. Leah Luker described the accused as normal on the night in question. [30] The other evidence showing times on the night in question is the security camera which was installed on the house of ClaytonDevoe who lived at 127 Black Rock Road. It was agreed that the clock on the camera was 53 minutes slow.

The Nissan goes north atapproximately 7:49 (20:42) and goes south at approximately 7:55 (20:48). [31] If the collision occurred at 21:42, to have a blood alcohol concentration of under 80 mgs the accused would have had to haveconsumed .9 of a beer between 21:12 and 21:42. [32] The Crown asks that I find that the accused opened the beer when he arrived at David Edwards’ home. They say that becauseDavid Edwards testified that there was nothing unusual in the way that the accused drank the beer that he would not have consumed .9 ofthe beer after 21:12.

The Crown says that this would be an abnormal manner of drinking beer. [33] The Defence suggests that I do not have evidence whether the accused went directly to David Edwards and Leah Luker’sresidence after the Nissan was seen driving in that direction at 20:48.

David Edwards testified that the accused and Beth Hart did notarrive at the residence until 21:15 and that Beth Hart went home, and the accused returned to David Edwards’ residence at 21:20 or later.They played darts and the collision occurred at 21:42. [34] Inferences consistent with the innocence of the accused do not have to arise from proven facts as that puts an onus on theaccused to prove facts and is contrary to the rule that reasonable doubt is assessed by considering all of the evidence (R. v. Villaroman,2016 SCC 3, para. 35).

Justice Cromwell continues: [36] I agree with the respondent’s position that a reasonable doubt, or theory alternative to guilt, is not rendered “speculative” by themere fact that it arises from a lack of evidence. As stated by this Court in Lifchus, a reasonable doubt “is a doubt based on reason andcommon sense which must be logically based upon the evidence or lack of evidence”: para. 30 (emphasis added). A certain gap in theevidence may result in inferences other than guilt. But those inferences must be reasonable given the evidence and the absence of

evidence, assessed logically, and in light of human experience and common sense. [37] When assessing circumstantial evidence, the trier of fact should consider “other plausible theor[ies]” and “other reasonablepossibilities” which are inconsistent with guilt: (citations omitted). I agree with the appellant that the Crown thus may need to negativethese reasonable possibilities, but certainly does not need to “negative every possible conjecture, no matter how irrational or fanciful,which might be consistent with the innocence of the accused”: R. v.

Bagshaw, (SCC), [1972] S.C.R. 2, at p. 8. “Otherplausible theories” or “other reasonable possibilities” must be based on logic and experience applied to the evidence or the absence ofevidence, not on speculation. [38] Of course, the line between a “plausible theory” and “speculation” is not always easy to draw. But the basic question is whether thecircumstantial evidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference other thanthat the accused is guilty.

There is no obligation on the accused to call evidence to establish a factual basis for an alternative explanation or inference (R. v. Snow,2019 NSCA 76, para. 49). [35] The evidence regarding the time that the accused arrived at the residence of David Edwards and Leah Luker, is not clear. LeahLuker’s evidence would suggest that the accused was there as early as 8:40 and left somewhere between 20 to 40 minutes later. WhileLeah Luker’s evidence would put the consumption of the beer outside the 30-minute time, her evidence in relation to times are notconsistent with the other evidence.

Leah Luker would have the accused leaving at the latest at 21:20 which does not align with theevidence of the collision or her own evidence as to how long passed from the accused’s departure until they heard the sirens. [36] David Edwards’ evidence would have the accused arriving at his residence to play darts at 21:20 and leaving 20 to 25 minuteslater. If his evidence is accepted, the accused would have had to have consumed the whole beer he drank in the 30 minutes prior to thecollision. [37] The camera shows the Nissan vehicle going southbound at 20:48.

If the accused went directly to the Edwards/Luker residencehe would have arrived about five minutes later or at 20:53. Edwards and the accused went to the barn to play darts and Edwards says thatthe accused opened the beer a few minutes later. The Crown asks that I find that it would be abnormal for a person to drink only .1 of abeer in the first 15 minutes and .9 of a beer after that time. [38] The inference that Crown is asking me to draw is one inference that can be drawn from the evidence. I know nothing about theaccused’s drinking habits. The accused was playing darts and he was talking to Leah Luker.

Based on the evidence, it is equally plausiblethat the accused drank .9 of the beer in the 30 minutes prior to the collision. [39] The time of the accused’s consumption of the beer at the Edwards/Luker residence is not clear. The surrounding evidencemakes the inference that he consumed the beer within 30 minutes of the collision a reasonable inference. Without greater precisionaround the accused’s consumption of the last beer, the Crown has not established the factual basis for the assumption by Ms.

Frenettethat no alcohol was consumed in the 30 minutes prior to the collision. [40] The assumptions about not drinking alcohol within 30 minutes of the collision were essential to Ms. Frenette’s opinion andextrapolation. I therefore have a reasonable doubt that her calculations are correct.

I have a reasonable doubt that the accused had a bloodalcohol concentration equal to or exceeding 80 mgs of alcohol in 100 mls of blood within two hours of ceasing to drive. [41] I find the accused not guilty of count 2 of the indictment. 2 Has the Crown proven beyond a reasonable doubt thatColin Hugh Tweedie on or about the 11th day of July 2019, at ornear Black Rock, Nova Scotia did operate a conveyance in amanner that was dangerous to the public and thereby causedthe death of Talia Forrest contrary to

Section 310.13(3) of theCriminal Code of Canada? [42] The elements of the offence of dangerous driving causing death which must be proven beyond a reasonable doubt by theCrown are: (

a) That Colin Hugh Tweedie operated a conveyance; (

b) The Colin Hugh Tweedie operated the conveyance in a manner that was dangerous to the public; and (

c) That Colin Hugh Tweedie’s dangerous operation of the vehicle caused the death or was a significant contributing cause ofthe collision which resulted in the death of Talia Forrest. [43] It is clear and admitted that the accused operated a conveyance and that the collision between the vehicle driven by the accusedand Talia Forrest caused the death of Talia Forrest. [44] The Supreme Court of Canada has held the onus lies on the Crown to prove both conduct and the fault elements of the offence.

I must be satisfied beyond a reasonable doubt that, viewed objectively, the accused was driving in a manner that was “dangerous to the public, having regard to all of the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place” ( R. v. Beatty , 2008 SCC 5 , para. 43 ).

I must also be satisfied beyond a reasonable doubt that the accused’s objectively dangerous conduct was accompanied by the mental element that on the evidence the accused’s conduct amounted to a marked departure from the standard of care that a reasonable person would observe in the accused’s circumstances and that a reasonable person in similar circumstances ought to have been aware of the risk and danger involved in the conduct of the accused ( Beatty , para. 43 ). [ 45 ] In R. v.

Roy , 2012 SCC 26 , the mental element is further explained: [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. [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). [38] The marked departure from the standard expected of a reasonable person in the same circumstances — a modified objective standard — is the minimum fault requirement. The modified objective standard means that, while the reasonable person is placed in the accused’s circumstances, evidence of the accused’s personal attributes (such as age, experience and education) is irrelevant unless it goes to the accused’s incapacity to appreciate or to avoid the risk (para. 40).

Of course, proof of subjective mens rea — that is, deliberately dangerous driving — would support a conviction for dangerous driving, but proof of that is not required (Charron J., at para. 47; see also McLachlin C.J., at paras. 74-75, and Fish J., at para. 86). [ 46 ] It must be determined whether the accused operated the vehicle in a manner that was dangerous to the public having regard to all of the circumstances. [ 47 ] The medical examiner found the cause of death to be blunt head trauma. A helmet would not have prevented the injuries.

He said that the injuries suffered by Talia Forrest were caused by blunt force, an impact with linear object. He could not say with great certainty the position that Talia Forrest would have been in when she was struck because of the high energy of the impact and the secondary impact. He said that based on the placement of her injuries there was an indication that her left side was facing the vehicle. [ 48 ] Corporal Ford, the accident reconstruction expert, found that the minimum speed range for the vehicle driven by the accused would have been between 76 km/h to 102 km/h.

The accused was not wearing a seatbelt at the time of the collision. The area of impact was right of centre in the southbound lane adjacent to 135 Black Rock Road. The damage to the bicycle was consistent with a side strike of the bicycle and the bicycle being dragged by the Nissan a considerable distance. In his opinion the accused failed to detect and avoid colliding with Talia Forrest. There was insufficient physical evidence to determine why the accused failed to detect the cyclist or why they failed to stop after the collision.

Corporal Ford determined the final resting place of Talia Forrest based on blood on the grass and what was reported to him by Corporal Coady. Corporal Coady received the information about Talia Forrest’s final resting place from another person as he arrived after the ambulance had left the scene with Talia Forrest. [ 49 ] The bicycle was located about 1.15 kms from the area of impact. The distance from the area of impact to the residence of the accused was 1.91 kms. Circumstances: [ 50 ] I will review some of the circumstances that were present on the night of July 11, 2019. (

a) Light/Visibility: [ 51 ] Some of the witnesses indicated that it was dusk or just getting dark. David MacLean who came along to the scene shortly after the collision and found the bicycle on the road said it was dark. The time of the collision was 21:42. The clothing worn by Talia Forrest was dark and other than some reflectors on the bike, there was nothing to stand out in the dark. The video from Clayton Devoe’s camera shows vehicles with their headlights and taillights on and the flashlights or phone lights of the people searching for Talia Forrest are visible.

Noelle MacLean who went outside immediately after the collision sent children home to get their parents and flashlights. Clayton Devoe described a bunch of people with flashlights north of his home when he came out of his house after hearing people screaming. [ 52 ] In the photos taken by the accident reconstruction expert, Corporal Ford, there does not appear to be a streetlight which would illuminate the area where the collision occurred. Corporal Ford described the ambient lighting on the Black Rock Road as minimal.

Corporal Ford took photos on July 11, 2020, a year after the accident, to try to show the visibility. However, it is not clear that the visibility would have been the same in 2019 as there was evidence that the brush along the side of the road had been cut back. (

b) Condition of the Black Rock Road:

[53] Clayton Devoe testified that the Black Rock Road was in poor condition, with very little shoulder. He said he swerved on theBlack Rock Road to avoid potholes. Others described the road as bumpy. David Edwards described Black Rock Road as being in roughshape. The police took the accused to the scene of the collision on July 12, 2019, and during that drive, the accused described the road as“really rough” and “a lot of people drive in the middle of the road”. The bouncing of the police camera during the drive on the BlackRock Road also showed that the road was bumpy.

Corporal Ford described the Black Rock Road as having cracks, with pieces of thenorthbound lane adjacent to the gravel shoulder deteriorated and absent. He noted that the northbound lane was in poor repair with anuneven surface for northbound traffic. He also noted that the middle line was faded. (

c) Evidence of the Scene being disturbed: [54] Prior to the arrival of the police, there were many people in and around the scene of the collision. Clayton Devoe described abunch of people with flashlights. Noelle MacLean testified that children started to gather when they were searching for Talia Forrest,and she sent them home to get their parents and flashlights. She also testified that there were a lot of people on the scene after theambulance left. She later testified that there were “all kinds of people from the neighbourhood” gathered.

Noelle MacLean said that shepicked up the bumper that was on the side of the road and she placed it back down. There was also a suggestion that one of the flip flopsworn by Talia Forrest was picked up at one point. Leah Luker described, civilians, firemen and everyone in a panic when she arrived.The video from Clayton Devoe’s camera shows two cars going north after the accident and before the emergency vehicles arrive. Twoemergency vehicles, one being the ambulance, arrived and appear to go through the scene.

The evidence from the witnesses was that theambulance did drive through the area of the collision when it arrived and then again when it left with Talia Forrest. The video shows thatthere were cars parked on the right side of the road pointing north when the emergency vehicles arrived. (

d) Place of Collision: [55] Corporal Ford found that the area of impact was right of centre in the southbound lane. He based his conclusion on the areawhere the paint chips and plastic vehicle debris were located and marks on the highway which he found were consistent with marks onthe road created by the front wheel of the bicycle when it broke free and stuck the highway. The area of impact, he concluded, wasadjacent to civic address 135 Black Rock Road. His conclusion was that the accused’s vehicle crossed the centre line to the left andstruck Talia Forrest. (

e) Manner of Impact: [56] Corporal Ford concluded that the front of the vehicle driven by the accused struck the bicycle driven by Talia Forrest on theleft side. Talia Forrest would have fallen to the right and the bicycle she was riding would have been dragged on the right side. Theevidence and photos from the Forensic Identification Officer showed paint transfer from the pink bicycle under the vehicle and thedamage to the right side of the bicycle which I find would be consistent with being dragged on the highway under the vehicle driven bythe accused.

This is also consistent with the evidence provided by the friend who was with Talia Forrest at the time. The bicycle drivenby Talia Forrest was found about 1.15 kms from where Corporal Ford found to be the area of impact. Corporal Ford could not rule outthat the bicycle driven by Talia Forrest went out in front of the vehicle before the vehicle could brake. (

f) Speed of Vehicle: [57] There were no posted speed limit signs on Black Rock Road at the time of the collision, therefore pursuant to s. 106 of theMotor Vehicle Act. R.S.N.S. 1989, c. 293, the speed limit is 80 kilometres per hour. Corporal Ford estimated the accused’s speed on thenight in question to be between 76 km/h and 102 km/h. Corporal Ford estimated the speed using two mathematical formulas. There wereno brake marks at the area of impact or after the area of impact. (

g) Evidence of Impairment: [58] The only evidence of impairment in relation to the accused comes from the police officers and from Ms. Frenette, thetoxicologist. Constable Wallace testified that when he accompanied the accused from one police car to the other, he smelled alcohol onhis breath, he was unsteady on his feet and his balance was off. Corporal Jessome said that he smelled alcohol both when the accusedwas in the driveway and when the accused was in the police car.

He also testified that the accused mixed up who was the girlfriend andwho was the boyfriend in relation to himself and Beth Hart which he took to be a sign of impairment.

The accused said that he learnedfor the first time when he was in the back of the police vehicle that it was not a deer he hit but a young girl. [59] The toxicologist testified that a person with a blood alcohol concentration between over 50 mgs but under 100 mgs in 100 ml ofblood would have decreased inhibitions, increased self-confidence and the performance of skills required for driving will decline due todecreases in attention, judgment, concentration, visual skills and overall loss of motor control and coordination.

With mild to moderateintoxication, reaction time is affected, and it may take longer to react to the environment. [60] The people who saw the accused immediately before the collision noted no signs of impairment. David Edwards described theaccused as hitting the board when they played darts and consuming one beer. Leah Luker described the accused as normal on the night inquestion. [61] Impairment is an issue of fact. It is not an offence to drive a conveyance after having consumed alcohol (R. v. Stellato, (SCC), [1994] 2 S.C.R. 478, upholding R. v. Stellato, (ONCA)). (

h) Evidence of Talia Forrest’s friend: [62] The friend who was with Talia Forrest on the night of the collision testified. Talia Forrest had been with her all day, and theydecided to go for a peddle bike ride and they went a couple of houses away from her house. She described her footwear as grey shoesand Talia Forrest was wearing flip flops. Neither girl was wearing a helmet. There were no lights on either bike. She said it was sunset,orange and you could see. They turned to go back to her house, and she saw a car swerving on the road.

She had a bad feeling and shetold Talia Forrest to stop on the side of the road, which she called the sidewalk. Once the car went by, she started riding her bike again

and looked back and saw the bike Talia Forrest was driving under the car and tires flying. She heard the squealing noises from the bike,and she started screaming for help. She described Talia Forrest as being beside her on the side of the road, three inches away. Shedescribed the car coming towards them as zig zagging and swerving. When Talia Forrest was found, her mother flipped Talia over toperform CPR. On the night of the accident, she described the car as a white Honda Civic.

In her statement to police, she described thedriver opening the door of the car to try to hit her with the door. [63] This witness witnessed a very, very traumatic event and I must weigh her evidence in that light. While I find that she gavecredible evidence, I have serious concerns about her reliability (R. v. H.C., 2009 ONCA 56 ). We know that the car was notwhite and was not a Honda Civic. While she originally said that she thought there were two people in the car, there was a sunroof andthe driver tried to hit her with the door, she said she could not remember those things during her evidence in court.

None of those thingswere accurate. Dangerous Driving: [64] The first question is whether, in light of all the relevant evidence, a reasonable person would have foreseen the risk and takensteps 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, ifpossible, was a marked departure from the standard of care expected of a reasonable person in the accused’s circumstances. [65] In relation to the first question, the circumstances on July 11, 2019, included that but it was dark enough that people searchingfor Talia Forrest had to use flashlights and the cars on the road in the video had their headlights and taillights on. It was a country roadwith minimal ambient streetlights. The bicycles driven by Talia Forrest and her friend did not have headlights.

The two girls were notwearing reflective clothing or helmets with reflectors. [66] The range of estimated speed of the vehicle driven by the accused allows that he was driving below the speed limit. [67] There is evidence that the area of impact was in the southbound lane. Corporal Ford based that opinion partly on the location ofthe paint chips which were the first pieces of physical evidence found. With the number of people and vehicles in the area, I cannot besatisfied that the paint chips remained in their original position.

The video shows that the vehicle driven by the accused was on thecorrect side of the road when he passed Clayton Devoe’s home and as it continued north on the road. The vehicle was not zig zagging inthe video. The suggested area of impact was not far from where the vehicle is last seen in the video on the correct side of the road. [68] If I accept that the accused crossed the centre lane of the highway and the vehicle he was driving struck Talia Forrest in thesouthbound lane, I must also consider the evidence in relation to the condition of the road.

Talia Forrest’s friend described the vehicle asswerving or zig zagging. Corporal Ford described the northbound lane as being in poor repair with pieces of the northbound laneadjacent to the gravel as being absent. Clayton Devoe said that he swerved on the Black Rock Road to avoid potholes. When the accusedwas in the police vehicle on Black Rock Road on July 12, 2019, he described Black Rock Road really rough, and he said that peopledrove in the middle of the road.

The condition of the Black Rock Road makes it possible that a reasonable person would be swerving andin the southbound lane to avoid potholes. [69] The smell of alcohol on a person’s breath is an indication that the person consumed alcohol. It is not an indication ofimpairment or indication of the quantity of alcohol consumed. The other indica of impairment from the police witnesses was that theaccused was off balance and mixing up the terms boyfriend/girlfriend.

In his statement the accused said that he learned for the first timewhen he was in the back of the police car that it was not a deer he hit but a young girl. As stated in R. v. Brogan, 2008 NSPC 42, theeffects of the traumatic experience of the accident and then learning that he had hit a child cannot be discounted when assessing theindicia of impairment (para. 113). Mixing up terms and being unsteady on his feet are equally as consistent with the accused justlearning that he had hit a child and the effects of shock, the traumatic event, and panic.

The witnesses who saw the accused prior to himdriving did not note any indica of impairment. I cannot be satisfied that the accused was impaired at the time of the collision. Theevidence of impairment is frail. [70] The absence of brake marks at the area of the collision and after the collision are consistent with accused not having seen TaliaForrest and her friend on the road and with thinking that he hit a deer. In his statement the accused says that he saw a deer in that areatwo days before the collision, that he has hit a deer before, and his father had hit a deer a few months prior.

The accused said thatbecause he did not see anything he assumed a deer had jumped out of the ditch. The airbags in the vehicle went off and he could notbreathe, and he could not see. I cannot find that a reasonable person would have braked or seen Talia Forrest. Corporal Ford could notrule out that Talia Forrest went out in front of the accused vehicle. [71] The Crown asks that I find that operating a vehicle at 76 kms an hour in an 80 km an hour zone and being on the wrong side ofthe road is inherently dangerous.

I cannot find that driving under the speed limit or at the speed limit and swerving to avoid a bad portionof the road are driving in a manner that a reasonable person would not.

I also do not find that a reasonable person would have expectedchildren to be on bicycles on the Black Rock Road at 21:42 at night without lights or reflective clothing. [72] If I am wrong in finding that in light of all the relevant evidence, a reasonable person would not have foreseen the risk andtaken steps to avoid it, if possible, I will consider the second question. [73] The second question is whether the accused’s failure to foresee the risk and take steps to avoid it, if possible, was a markeddeparture from the standard of care expected of a reasonable person in the accused’s circumstances.

In light of the time of night and allof the other circumstances, I cannot find that the accused’s conduct or driving was a marked departure from the norm, or the standard ofcare expected of a reasonable person in the accused’s circumstances. It must be remembered that simply carelessness is generally notcriminal. [74] Despite the horrible and tragic circumstances on July 11, 2019, that resulted in the death of Talia Forrest, I can not be satisfiedbeyond a reasonable doubt that the accused is guilty of dangerous driving.

The evidence does not allow me to say that the accused’sdriving was a marked departure from that of a reasonable person in the circumstances.

[ 75 ] I find the accused not guilty of dangerous driving causing death. 3 Within two hours of ceasing to operate a conveyance and knowing, or being reckless to whether, the conveyance had been involved in an accident with a person or other conveyance, and knowing at the time of the failure, or being reckless as to whether the accident caused the death of another person failed without reasonable excuse to stop the conveyance, give their name and address and, if any person has been injured or appeared to require assistance, offer assistance, contrary to

Section 320.16 of the Criminal Code of Canada. [ 76 ] It is not entirely clear why the count in the Indictment has the addition of “within two hours of ceasing to operate a conveyance” as that is not an element of the offence in s. 320.16. The accused was on his way back to the scene of the collision when he encountered the police going to his house and he turned back to his home to go to speak to the police. [ 77 ] For the accused to be guilty of the offence the Crown must prove: (

a) The accused was operating a conveyance; (

b) At the time the accused was operating the conveyance, he knew or was reckless as to whether the conveyance was involved in an accident with a person or another conveyance; (

c) The accused knew or was reckless as to whether the accident resulted in the death of another person; and (

d) The accused failed, without reasonable excuse, to stop the conveyance, give his name and address, and offer assistance. [ 78 ] It is conceded that the accused was operating a conveyance which was involved in an accident and the accused failed to stop to give his name and address and to offer assistance.

The death of Talia Forrest resulted from the accident. [ 79 ] The Crown must prove beyond a reasonable doubt that the accused knew or was reckless as to whether an accident with a person or another conveyance occurred. [ 80 ] The friend who was with Talia Forrest had originally told police and Noelle MacLean that the driver of the vehicle had tried to hit her with the door of the car. She did not adopt that evidence during her testimony, and I do not find that evidence reliable. She was an 11-year-old child who had just witnessed the aftermath of an accident which resulted in the death of her friend.

Her inability to understand or piece together the events is very understandable but it significantly undermines her reliability. [ 81 ] The only other evidence of what occurred after the collision comes from the accused himself. When he was being interviewed by the police, he said that he thought that he had struck a deer. He assumed he hit a deer because he did not see anything and thought a deer had jumped out of the ditch. [ 82 ] He said that he had seen a deer in the area two days prior, he had hit a deer on a previous occasion and his father had struck a deer in the past three months.

In the police vehicle when he was driven back to Black Rock Road on July 12, 2021, the accused said he kept driving, at first, he could not see anything because of the air bags. He was hoping to make it home without being stranded on the side of the road. He could smell air bags and maybe coolant. He drove home and walked into the house and told her girlfriend he hit a deer and that she had to come and see what he had done to her car. He knew how upset his girlfriend was going to be because of the damage. He and his girlfriend started walking back up the road to see if they could find the deer.

When they got to the road, a police car went past them which his girlfriend tried to wave down. The accused and his girlfriend turned around and went back to his residence where they met the police officers in the driveway. [ 83 ] In his statement the accused said that he was in a panic as the vehicle in the collision was their only mode of transportation. He knew that Beth Hart only had basic liability insurance on the vehicle, and he assumed that the damage to the vehicle would not be covered.

When asked whether he was in a panic because he did not know exactly what he hit, the accused responded that he thought he had hit a deer. The accused was clear that he did not know that he had hit a young girl until he was in the police car. [ 84 ] The Crown suggests that the accused has given no reason for believing that he hit a deer and he was reckless because he did not investigate what happened. He did not stop, and he did not investigate. He was close to houses. The Crown asserts that the accused was reckless to assume he hit a deer.

The Supreme Court of Canada has described the term recklessness in criminal law: … In accordance with well established principles for the determination of criminal liability, recklessness, to form a part of the criminal mens rea , must have an element of the subjective. It is found in the attitude of one who, aware that there is danger that his conduct could bring about the result prohibited by the criminal law, nevertheless persists, despite the risk. It is, in other words, the conduct of one who sees the risk and who takes the chance.

It is in this sense that the term "recklessness" is used in the criminal law and it is clearly distinct

from the concept of civil negligence (R. v. Sansregret, (SCC), [1985] 1 S.C.R. 570). [85] I accept that the accused believed that he hit a deer and did not know he hit a person or Talia Forrest. He was close to hishouse, and he did not want to be broken down on the side of the road. He went home and told Beth Hart, who owned the vehicle, that hehit a deer. They started back to find the deer. The accused was not aware he had hit a child and so is not a person who was aware that hehit a person and did not stop despite knowing that fact. The accused was not reckless as to whether he had hit a person as he believed thathe hit a deer. He did not think he hit another conveyance.

Section 320.16 of the Criminal Code does not make it an offence fail to stop ifyou hit an animal. [86] I am not satisfied that he knew or was reckless as to whether the accident resulted in the death of another person. [87] I am also not satisfied beyond a reasonable doubt the accused knew that or was reckless as to whether the vehicle was involvedin an accident with a person or another vehicle which would be the included offence of failure to stop after an accident pursuant to s.320.16(1). [88] Based on all of the circumstances I find the accused not guilty of failure to stop after an accident resulting in death contrary tos. 320.16(3).

Conclusion: [89] I find that the Crown has not proven beyond a reasonable doubt that on or about the 11th day of July 2019, at or near BlackRock the accused is guilty of operating a conveyance or vehicle in a manner that was dangerous to the public and thereby causing thedeath of Talia Forrest contrary to s. 320.13(3) of the Criminal Code of Canada. [90] I find that the Crown has not proven beyond a reasonable doubt that on the same date and in the same place the accused isguilty of within two hours of ceasing to operate a conveyance having a blood alcohol concentration that was equal to or exceeded eightymilligrams of alcohol in one hundred millilitres of blood and thereby caused the death of Talia Forrest contrary to s. 320.14(3) of theCriminal Code of Canada. [91] I find that the Crown has not proven beyond a reasonable doubt that on the same date and at the same place that the accusedknowing, or being reckless to whether, the conveyance had been involved in an accident with a person or other conveyance, and knowingat the time of the failure, or being reckless as to whether the accident caused the death of another person failed without reasonableexcuse to stop the conveyance, give their name and address and, if any person has been injured or appeared to require assistance, offerassistance, contrary to s. 320.16 of the Criminal Code of Canada. [92] I find the accused not guilty of the three charges. [93] He has already been found guilty of obstructing a peace officer in the execution of his duty contrary to s. 129(

a) of the CriminalCode. Lynch, J.