City: Pembroke, Ontario
Our Client: Mr. M.
Complainant: Ontario Provincial Police
Charge(s): Criminal Negligence Causing Bodily Harm, Dangerous Operation of a Motor Vehicle, and Dangerous Operation Causing Bodily Harm, HTA Careless Driving and Driving an Unsafe Commercial Vehicle with a Critical Defect
Lawyer: E. Chan
Background: The collision happened on a clear day in June. Mr. M., who was driving a five-ton moving van, looked down to adjust the station on his radio. He drifted a little to the right. Witnesses observed that he then swerved back to the left. As he looked up, he did not see anything of note. He went back to looking at the radio to adjust the station. When he looked back up he saw a white Toyota looming up to him. He forcibly applied his brakes. He tried to turn to the right, to the ditch. A chain reaction commenced: with Mr. M. swerving to avoid rear-ending the stopped Toyota, but failing as the van skidded offset towards the right side of the lane, striking the Toyota from behind. The Toyota rotated and hit a Hyundai SUV. The chain reaction continued. The Hyundai moved forward after the rear-end impact from the Toyota causing a collision between the front end of the Hyundai and the rear of a Dodge van. The fourth and the final impact was between Mr. M.’s moving van and a tractor trailer. The left front of his moving van was crushed inward. Mr. M. was trapped in the cab of the van and was seriously injured. The skid marks on the road showed that Mr. M. had tried to brake but that his brakes had locked. It appeared that the left rear brake assembly was not functioning properly due, it was subsequently determined, to some oil contamination on the brake pad. Mr. M. was charged with Criminal Negligence Causing Bodily Harm, Dangerous Operation of a Motor Vehicle and Dangerous Operation Causing Bodily Harm. The Crown elected, in Mr. M.’s case, to proceed by indictment; that meant that if convicted Mr. M. would be liable to imprisonment for a term of up to 10 years. He would also be subject to a very lengthy driving prohibition. Almost six months after he was charged with these criminal offences, the Crown additionally served him with Highway Traffic Act (provincial offences) charges of Careless Driving and Driving an Unsafe Commercial Vehicle with a Critical Defect.
Goal: Mr. M. was a truck driver by profession. A conviction would mean jail and the loss of his livelihood, so a plea deal was not an option. The goal was to avoid conviction on all the charges.
Strategy: We would retain an engineer to assist us with our technical analysis of the collision and our cross-examination of the Crown’s accident reconstruction expert. The issue for the court to decide in this trial, would be whether the Crown had proven beyond a reasonable doubt that Mr. M. had the requisite mens rea (the intention or knowledge of wrongdoing) to commit the offence. In order to raise a reasonable doubt, we would adduce technical and testimonial evidence and refute the reconstruction expert’s evidence through cross-examination. We would also challenge the charges by way of a non-suit application.
Verdict: The Criminal Negligence Causing Bodily Harm charge was dismissed as a result of our non suit application. For the remaining two criminal charges, the judge held that he was left in a state of reasonable doubt as to the mens rea component of the test for dangerous driving, and found Mr. M. not guilty. Mr. M. was acquitted on all counts. Later, the Careless Driving and Driving an Unsafe Commercial Vehicle with a Critical Defect charges which were heard in Provincial Offences Court, were diverted. So, none of the charges stemming from the incident remained – and Mr. M. was able to maintain his job as a commercial truck driver!