R v Stewart, 2020 SKCA 116

Court of Appeal for Saskatchewan Docket: CACR3238 Citation: R v Stewart , 2020 SKCA 116 Date: 2020-10-13 Between: Kiel Stewart Appellant And Her Majesty the Queen Respondent Before: Jackson, Barrington-Foote and Kalmakoff JJ.A. Disposition: Appeal allowed Written reasons by: The Honourable Mr. Justice Barrington-Foote In concurrence: The Honourable Madam Justice Jackson The Honourable Mr. Justice Kalmakoff On appeal from: 2018 SKPC 65 , Saskatoon Appeal heard: March 3, 2020 Counsel: Jay Watson for the Appellant Andrew Davis for the Respondent Barrington-Foote J.A. I.

Introduction [ 1 ] On October 15, 2016, the appellant, Kiel Stewart, was an occupant of a black Mercedes-AMG automobile which was in a single vehicle rollover [accident] approximately one mile north of Young, Saskatchewan. The accident resulted in the deaths of Brett Busse and Adam Powell and bodily harm to David McCarthy. In a November 7, 2018, decision [trial decision], a judge of the Provincial Court of Saskatchewan [trial judge] convicted Mr. Stewart of dangerous driving, impaired driving, and driving while his blood alcohol content exceeded the legal limit causing the death of Ms.

Busse, and of the same offences relating to both the death of Mr. Powell and the bodily harm to Mr. McCarthy. A judicial stay was entered on the three impaired driving counts. [ 2 ] The identity of the driver was the sole issue at trial. Mr. Stewart did not deny that he was impaired or that he drove the Mercedes on the day this tragic accident occurred. He conceded he was guilty of dangerous driving, impaired driving, and driving while his blood alcohol content exceeded the legal limit. However, he testified that he was not the driver at the time of the accident.

The trial judge rejected that evidence and concluded he was the driver, on the basis of circumstantial evidence. [ 3 ] Mr. Stewart has appealed all of the convictions. His grounds of appeal include the allegation that the verdict was unreasonable within the meaning of s. 686(1) (a)(

i) of the Criminal Code because there were fundamental flaws in the reasoning; that is, that the trial judge made findings of fact which were incompatible with evidence that she neither contradicted nor rejected. I agree with that submission and would accordingly quash the convictions and order a new trial. II. BACKGROUND [ 4 ] On the morning of October 15, 2016, Mr. Stewart, Ms. Busse, Mr. Powell and Mr. McCarthy left a bar located in Watrous, Saskatchewan. They had all been drinking to the point of intoxication. A security video recorded Mr.

Stewart getting into the driver’s seat of the Mercedes, which left the parking lot shortly after. The trial judge noted the evidence that the time shown on the security video, 11:17:44, was accurate to between 30 seconds and 2 minutes. [ 5 ] The Mercedes proceeded northwest on Highway 2 toward Young, which is located approximately 22.4 kilometres from Watrous. Highway 2 is essentially straight for approximately 18.2 kilometres of the distance from Watrous to Young. It then curves slightly to the right [first curve] and continues straight northwest through Young.

Approximately one kilometre past Young, there is a second curve [second curve], and the highway turns due north. The speed limit from Watrous to Young is 100 km/h, except when travelling through Young, where it is reduced to 80 km/h. [ 6 ] Mr. Stewart testified that as he drove north on Highway 2, he passed a black car like it was standing still. He said that when he saw that his speedometer registered 240 km/h, he decided he did not want to continue driving and asked Mr. McCarthy to do so. It was his evidence they pulled off the road and Mr. McCarthy took over the wheel.

He said it took only 30 seconds to stop, switch drivers and accelerate to highway speed, noting that the car – a performance vehicle – was “intense”. He testified that he pulled over only when he was far enough ahead that the occupants of the black car could not see the Mercedes’ license plate. [ 7 ] The accident occurred immediately after the Mercedes passed a pickup truck driven by Hally Rose. Mr. Rose testified that the Mercedes passed his vehicle at a high speed on the second curve, caught the gravel on the shoulder of the road, flipped through the air, hit a railroad embankment and came to rest on its side.

Mr. McCarthy was found in the front passenger seat and Mr. Stewart was found in the driver’s side backseat of the badly damaged vehicle. Mr. Powell’s body was found in the passenger’s side backseat and Ms. Busse’s body was found outside the vehicle. [ 8 ] There was no direct evidence that Mr. Stewart was driving at the time of the accident. The trial judge concluded that he was the driver based on the direct evidence that he was driving when the Mercedes left the bar, and the evidence of witnesses who had

observed the Mercedes, but not its driver, as it proceeded up Highway 2, and recordings of 911 calls from some of those witnesses. She summarized her findings of fact relating to that evidence as follows: [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. [ 9 ] The trial judge found that Mr. Stewart’s evidence that he and Mr. McCarthy had switched places was not credible. She reached that conclusion based in part on her reconstruction of the timeline based on the evidence of Jeffrey Nickel, Cindy Huber, Mr.

Rose and Cora Goodpipe as to where and when they saw the Mercedes and when they called 911 to report what they had seen. That is demonstrated by the following reasoning: [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 the timing of events, concerns relating to his memory, and common sense. [32] Mr. Nickel 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. Huber arrived at the accident scene before Mr. Nickel, Mr. Stewart must have passed Ms. Huber after he passed Mr. Nickel. Two minutes after Mr. Nickel called 911, Hally Rose called 911 to report the accident. Accordingly, approximately two to two and a half minutes passed from 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. … [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. … III. analysis [ 10 ] It is clear, based on the portions of the trial decision reproduced above, that the trial judge accepted Mr.

Nickel’s evidence that he called 911 within 30 seconds after he was passed by the Mercedes. It was agreed that Mr. Nickel made that call at 11:25 a.m. and that Mr. Rose called 911 to report the accident two minutes later, at 11:27 a.m. These findings of fact were the basis for the trial judge’s conclusion that the accident happened between two and two and one-half minutes after the Mercedes passed Mr. Nickel. That conclusion was central to her reasoning. [ 11 ] Further, the trial judge found that the Mercedes passed Ms. Huber after it passed Mr. Nickel and that Mr. Stewart was still driving at that time.

These conclusions, together with Ms. Huber’s evidence that she did not see the Mercedes by the time she reached the first curve – which the trial judge also accepted – led the trial judge to conclude that it was highly unlikely that there was enough time for Mr. Stewart to pass and distance himself from Ms. Huber enough to enable Mr. McCarthy to take over the wheel without being seen. [ 12 ] With the greatest respect, this reasoning is fundamentally flawed. There was evidence that the Mercedes passed both Mr. Nickel and Ms. Huber.

There was, however, no evidence as to which of them the Mercedes passed first, or, for that matter, whether either Ms. Huber or Mr. Nickel passed the other. Ms. Huber’s testimony placed her in excess of four kilometres southeast of the first curve when she first saw the Mercedes, which passed her within 15 seconds of that first sighting. Mr. Nickel testified that he was approximately halfway from Watrous to the first curve – or approximately nine kilometres from Young – when he first saw the Mercedes, which passed him seconds later. However, the trial judge accepted Mr.

Nickel’s evidence that he called 911 within 30 seconds of being passed. The record of his 911 call confirms that he had arrived in Young 3 minutes and 20 seconds from the start of his call. He testified that his cruise control was set at 100 km/h. If that is so, he was approximately six kilometres from Young, and far closer to the first curve than Ms.

Huber, when he was passed by the Mercedes. [13] Based on this evidence, the Mercedes would have passed Ms. Huber before it passed Mr. Nickel. If that occurred, the trialjudge incorrectly found that the Mercedes would have had to pass and distance itself from Ms. Huber after passing Mr. Nickel. That wasone of the key conclusions that led the trial judge to conclude that there was not enough time for the driver switch to occur. Further, thereis an alternative explanation for Ms. Huber having arrived at the scene of the accident before Mr. Nickel; that is, Ms.

Huber, who testifiedthat she was driving 14–15 kilometres per hour faster than Mr. Nickel, may have passed Mr. Nickel after he was passed by the Mercedes.Mr. McCarthy may have taken the wheel after the Mercedes passed Ms. Huber and before it passed Mr. Nickel. [14] For these reasons, this aspect of the trial judge’s reasoning discloses errors of the kind specified in R v Beaudry, 2007 SCC 5,[2007] 1 SCR 190 [Beaudry].

Justice Fish summarized the gap filled by Beaudry in his dissenting reasons in R v Sinclair, 2011 SCC 40,[2011] 3 SCR 3: [4] Nothing in Beaudry should be taken as a departure from the well-established principles of appellate review set out in R. v. Yebes, (SCC), [1987] 2 S.C.R. 168, and R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381. Yebes and Biniaris continue to applywhere the issue is whether the verdict could have been reached reasonably by a properly instructed jury or a judge sitting alone. Beaudry,as we shall see, involves a narrower inquiry.

Its concern is whether it can be seen from the reasons for judgment that the trial judge’sconclusion — that is to say, the judge’s verdict — was reached illogically or irrationally.

As Justice Charron puts it, Beaudry is concernedwith “fundamental flaws in the reasoning process that led to [the trial judge’s verdict]” (para. 77). … [16] An appellate court will thus be justified in intervening, pursuant to Beaudry, where a trial judge draws an inference or makes afinding of fact that is (1) plainly contradicted by the evidence relied on for that purpose by the judge, or (2) demonstrably incompatiblewith evidence that is not otherwise contradicted or rejected by the trial judge.

See also R v R.P., 2012 SCC 22 at para 9, [2012] 1 SCR 746. [15] Here, the trial judge inferred that the Mercedes must have passed Mr. Nickel first and Ms. Huber second. That inference wasincompatible with evidence as to the location and speed of their vehicles which was not otherwise contradicted and that she did not reject.So too is the conclusion that Mr. Nickel called 911 within 30 seconds of being passed. Those errors featured prominently in the trialjudge’s decision to reject Mr.

Stewart’s testimony that he was not the driver at the time of the accident; that is to say, they played a centralrole in the reasoning process that led to the verdict. As such, the verdict is unreasonable within the meaning of s. 686(1)(a)(

i) of theCriminal Code. [16] Mr. Stewart also submits that the verdict is unreasonable because the Crown’s case on driver identity is circumstantial, and thatthe Crown failed to prove beyond a reasonable doubt that there was no other rational inference but that he was the driver.

Morespecifically, he argues that since a driver switch was consistent with and explains all of the other evidence, it is not enough for the Crownto have shown that it was unlikely to have occurred. [17] As Cromwell J. confirmed in R v Villaroman, 2016 SCC 33 at para 55, [2016] 1 SCR 1000, “[w]here the Crown’s case dependson circumstantial evidence, the question becomes whether the trier of fact, acting judicially, could reasonably be satisfied that theaccused’s guilt was the only reasonable conclusion available on the totality of the evidence”. Here, Mr.

Stewart not only offered analternative explanation, but also testified as to what occurred. However, the trial judge did not simply decide the driver switch wasunlikely. She expressly rejected Mr. Stewart’s evidence that there was a driver switch. [18] As I have explained, that conclusion was erroneously based on, among other things, findings of fact that were incompatiblewith evidence that was not otherwise contradicted or rejected. That does not mean it would not have been open to the trial judge, had shenot committed that error, to reject Mr.

Stewart’s evidence, and to conclude, based on the totality of the evidence, that the Crown hadproved that his guilt was the only reasonable conclusion. The question of whether such a finding would have been reasonable would turnon her findings of fact and the evidence as a whole. As Caldwell J.A. put the matter in R v Learning, 2019 SKCA 5: [25] … [T]he question for an appeal court in a case of circumstantial evidence is not whether there were other possible explanations forwhat happened.

The question is whether the trial judge unreasonably concluded that the evidence, when taken as a whole and whenapplying common sense, human experience and logic to determine the probability of outcomes, leads to only one reasonable conclusion,namely, that the accused committed the crime. To paraphrase the Court in R v Villaroman (at para 69), while not every trier of fact mayinevitably have reached the same conclusion as the trial judge did in this case, her conclusion need only be a reasonable one.

See, to the same effect, R v Lola, 2020 SKCA 103 at paras 21–22, and R v Wolff, 2019 SKCA 103, 380 CCC (3d) 223. [19] For that reason, it would not be appropriate to acquit Mr. Stewart of the charges. The correct remedy is to remit the matter tothe Provincial Court for a new trial. [20] Finally, Mr. Stewart submits that the trial judge also erred by finding that the fact his shoe was found near the gas pedal wassome evidence that he was the driver at the time of the accident. Given that I have concluded that the matter must be remitted for a newtrial, it is not necessary to deal with this issue.

The relevance of the evidence relating to the crash site is an issue to be determined by thetrial judge who conducts the second trial. IV. conclusion [21] For these reasons, it is my opinion that the verdict of the trial judge is unreasonable within the meaning of s. 686(1)(a)(

i) ofthe Criminal Code. The appeal must be allowed and the matter remitted to the Provincial Court for a new trial.

“Barrington-Foote J.A.” Barrington-Foote J.A. I concur. “Jackson J.A.” Jackson J.A. I concur. “Kalmakoff J.A.” Kalmakoff J.A.