Driver's conviction overturned, new trial ordered
STEPHEN UHLER/DAILY OBSERVER An accident on Lake Street near the Pembroke Memorial Centre on Jan. 11 sent three people to hospital. Ernie Hall, of Petawawa, died of his injuries the following day. A Pembroke man will stand trial in connection with the case in December, 2016.
An appellate court has overturned the conviction of a driver who allegedly struck a retired regimental sergeant-major outside the Pembroke Memorial Centre following a Lumber Kings game.
The conviction of dangerous driving causing death against Martial Laverdure, of Pembroke, was quashed by the Ontario Court of Appeals in Toronto on Friday with judges ordering a new trial.
In the original trial, which concluded last year, Laverdure was sentenced to 22 months months in jail, followed by a year of probation. Trial judge Martin James also imposed a five year driving prohibition. The conviction stemmed from the events of Jan. 11, 2015 when a car struck three pedestrians crossing Lake Street just outside the PMC. Retired Chief Warrant Officer Ernie Hall, of Petawawa, later died. Deanna Brown and her father-in-law, Ken Brown Sr., suffered injuries as a result of the collision.
In a hearing before the appeals court this week, lawyer Jodie-Lee Primeau argued that legal errors were committed by Justice James in his analysis of the elements of the offence of dangerous driving causing death. She also alleged unreasonable findings of fact.
In his decision to convict, Justice James said the Crown had established through eyewitness testimony and forensic evidence that Laverdure’s driving “departed markedly from the standard of care of a reasonable person” as set out in the Criminal Code. Leaving the arena at the end of a Lumber Kings game, Hall was walking to his parked Ford pick-up truck when a Toyota RAV 4 driven by Laverdure struck and two other pedestrians along Lake Street. Justice James accepted that the 39-year-old driver was travelling at a speed of 60 kilometres an hour when he pulled away from the Frank Nighbor intersection but hit the brakes 32 metres before his SUV initially hit Ken Brown and then Hall. The judge concluded Laverdure had stopped at the scene of the accident and was very distraught. There was no evidence of drug or alcohol consumption.
Justice James recognized that the evidence presented by witnesses and experts for the Crown did not permit a finding of Laverdure’s exact speed. He also recognized that the different witnesses gave various opinions as to the appellant’s speed. The trial judge did, however, accept the evidence of the accident reconstructionist that the appellant was going “about 60 km/hr” when he struck Mr. Hall.
The appeals judges, made up of Justices J. Michal Fairburn, David H. Doherty and Paul S. Rouleau, saw no basis upon which to interfere with the trial judge’s findings of fact. They also determined that Justice James had established the actus reus, or action or conduct that is a constituent element of a crime.
However, the appeals court found that the mens rea, or the intention or knowledge of wrongdoing that constitutes part of a crime, was not supported in this case. In their ruling, they noted that the offence of dangerous driving was not proven by showing only that the accused drove in a manner that was dangerous to the public.
“There is a fault element,” the justices noted. “The Crown must prove that the manner of driving amounted to a marked departure from the standard of care that a reasonable person would observe if placed in the circumstances in which the accused found himself. The fault component of dangerous driving focuses on the conduct of the accused and is intended to distinguish driving that is sufficiently egregious in all of the circumstances to warrant criminalization from other less serious forms of bad driving, such as careless driving.”
The court determined that having found that it was dangerous in all of the circumstances, Justice James did not engage in a similar analysis of the evidence as it related to the mens rea issue. Rather, he appeared to have concluded that the act of driving dangerously necessarily constituted what he referred to as a “marked departure from what a reasonable person would expect in the circumstances”.
The court noted that Justice James did not identify the “how and in what way” the appellant’s driving went beyond negligence or carelessness and reached the level of a marked departure from the standard of care that a reasonable person would show in the same position. The court concluded that the trial judge failed to fully analyze the evidence as it related to the fault component of the offence constitutes an error in law.
Ernie Hall was an accomplished infantryman and expert paratrooper who deployed to Cyprus, Bosnia, Croatia, Eritrea, Afghanistan and the Persian Gulf War during his 39-year career in the military. He was the RSM of the 3rd Battalion, Royal Canadian Regiment. From 2008 to 2009, he served as the RSM for the 3RCR Battle Group in Kandahar, Afghanistan. He retired in 2014 after serving as the RSM of the Pembroke-based 42nd Field Regiment.