A young offender got away with killing three elderly adults

On a clear April day in 29o2, a 16-year-old (whom I will refer to as “the driver”) and his friend J.S. went on a joy ride after school.  At 3:10 p.m. the driver picked up his teenage friend J.S. after school and they took a circuitous route home on rural roads looking for ducks crossing the road to hit.  The car radio was blaring. The visibility that day was clear and the respondent’s car had no mechanical defects. Along his route the driver passed four or five signs, each showing a speed limit of 50 kilometres an hour. A minute or so before the collision the driver passed a school bus by a very quick and unsafe maneuver.  He was driving 100 kilometres an hour, (—62 miles an hour) twice the speed limit.  The time, according to the school bus driver, was 3:17 p.m.

     

The driver drove south on 23rd Street and as he was approaching the intersection with the cross road being Culp Road, he was driving on the lane going in the opposite direction to be one he was to drive on.  There was a stop sign for traffic on 23rd Street, but no stop sign for traffic on Culp Road since it was a through street.

        

The trial judge found that the stop sign was difficult to see because it was angled slightly to the right and near an evergreen tree.  But she also found that it was not obstructed.

Actually J.S. saw the stop sign 100 feet before the intersection.  He warned the driver to stop but his friend was travelling too fast to do so.  He drove right past the stop sign and when he entered the intersection, he didn’t brake or take any other evasive action.

     

In the middle of the intersection the driver collided with a car travelling east on Culp Road.  All three elderly occupants of that car were killed and J.S. suffered a concussion and several cuts for which he was to receive plastic surgery.

        

On the unchallenged evidence of the prosecutor’s’ accident reconstruction expert, at the point of impact the driver’s car was on the wrong side of the road, well into the northbound lane on 23rd Street.  The trial judge did not refer to this evidence in her reasons. That was an error on her part since purposely driving on the oncoming traffic side of a road is definitely driving dangerously.

 The trial judge estimated that the collision occurred at 3:18 p.m., a minute or so after the respondent passed the school bus.  She also estimated that the distance between the point where the driver passed the bus and the point of the collision was two kilometres. (6,561 feet} Thus, although the trial judge did not fix the driver’s driving speed when he entered the intersection, the only reasonable inference from her estimates was that the driver was going at least twice the speed limit.

                   

The driver had been driving at twice the speed limit (100 kilometres an hour —62 miles an hour) on a country road.  He drove through a stop sign at an intersection and because he was going too fast, he neither saw the sign nor had time to brake had seen it.  He crashed into another car entering the intersection from his right, killing all three of its elderly occupants and badly injuring his friend who required plastic surgery.

The driver was charged with and acquitted of three counts of criminal negligence causing death, one count of criminal negligence causing bodily harm, three counts of dangerous driving causing death, and one count of dangerous driving causing bodily harm. 

Nonetheless, the trial judge acquitted the driver of dangerous driving.  In doing so, in my opinion, she erred in law.  Although she applied the proper test for dangerous driving, she erred in her conclusion that dangerous driving had not been made out in this particular case.

 The trial judge did find that the driver’s speed was excessive and that he was driving too quickly to avoid an unexpected occurrence at the time of the collision.

She also found that where it not for the speed at which he was driving, in all likelihood the driver would have seen the stop sign, or in the alternative, would have been able to take evasive action once he was warned of its presence by J.S.

She also found that where it not for the speed at which he was driving, in all likelihood the driver would have seen the stop sign, or in the alternative, would have been able to take evasive action once he was warned of its presence by J.S.

 On the basis of her findings of fact the trial judge concluded that the driver’s driving amounted to a departure but not a marked departure from the standard of care of a prudent driver.  I do not agree with her conclusion.  When a person purposely drives on the wrong side of the road and drives so fast at twice the speed limit that he does not even see a stop sign let alone have time to brake, his driving amounts to a marked departure from the norm.  But does it constitute dangerous driving?

 If I were the trial judge, I would have convicted him of dangerous driving because he was driving in the oncoming lane at twice the stated speed limit on that country road when he struck the other car in the intersection. Had he been driving at the speed limit, he would have seen the stop sign even though it was slightly tilted. Hs friend actually saw the stop sign and warned him of its existence before the driver drove his car into the intersection.

Inadvertent negligence is not sufficient to support a conviction of dangerous driving but the manner of the driver’s driving was anything but inadvertent. It was deliberate negligence on his part. Perhaps he should have been charged with criminal negligence causing death. It constitutes the crime of causing injury or harm to a person or property as the result of doing something or failing to provide a proper or reasonable level of care.

Surely driving on the wrong side of the road at a high rate of speed; especially when approaching an intersection, constitutes deliberately doing something that is wrong and also constitutes a failure to drive in a proper or reasonable level of care.

The Criminal Code of Canada makes it an offence to drive or operate a motor vehicle in a manner that is dangerous to the public. Deliberately driving on the wrong side of the road at a high rate of speed; especially when approaching an intersection is clearly dangerous.

The Crown (prosecutor) appealed only the dangerous driving acquittals.  Under s. 676(1)(a) of the Criminal Code a prosecutor may appeal an acquittal only on a question of law.  The application of a statutory standard such as dangerous driving to findings of fact made by the trial judge or to undisputed facts raises a question of law

Two out of three Court of Appeal judges who heard the appeal concluded that the trial judge did find that “in all likelihood” had the driver not been driving at an excessive speed he would have seen the stop sign.  However, she was not able to make a finding as to the actual speed of the vehicle and she did find that the stop sign was difficult to see.  She found that absent other aggravating factors these facts did not constitute dangerous driving.  In our view, it cannot be said that this conclusion reflects any error in law. 

The dissenting judge ruled; “I would allow the Crown’s appeal, convict the respondent on the four counts of dangerous driving, and remit the case to the trial judge for sentencing.

Nevertheless, the young driver won his appeal. However, his insurance company will be paying out a great amount of money to the families of the deceased victims and his friend who was seriously injured.