Humboldt prosecutors face tough challenge

High threshold for dangerous driving charges

Prosecutors face a difficult task making 29 criminal charges stick against the semi driver involved in the deadly crash of the Humboldt Broncos team bus.

Dangerous driving charges have to meet a high threshold regardless of the death toll of a crash, and a momentary lapse of attention on the part of a driver is generally not enough to secure a conviction.

The truck driver, 29-yearold Jaskirat Sidhu, faces 16 counts of dangerous operation of a motor vehicle causing death and 13 counts of dangerous operation of a motor vehicle causing injury. He could face many years in prison if convicted.

The Crown will need to prove beyond a reasonable doubt that Sidhu’s actions showed a “marked departure” from what a prudent driver would have done under similar circumstances.

The Saskatchewan RCMP laid the charges on Friday after an extensive three-month investigation that included 6,000 photographs, more than 60 interviews, analysis of the semi driver’s log book, evidence gathered from aerial drones and a forensic reconstruction of the collision.

Above all else, a trial would depend on the evidence submitted in court — and the RCMP have released almost nothing to the public about that yet.

Among crucial questions that will be considered if the case goes to trial:

Did Sidhu blow through the stop sign in his path? Was he speeding? Was he blinded by the setting sun? Was his view blocked by the bluff of trees? Was the truck in good working condition?

“What we can say about the evidence that we’ve gathered is limited, as this matter is before the courts,” said Supt. Derek Williams, who led the investigation, on Friday.

“We’ve looked at every aspect of the collision, including the speed of the vehicles, the point of impact, the position of the vehicles, impairment, road and weather conditions, and witness evidence.”

It is notable, however, that no impaired driving charges were laid on Friday, nor any charges against the trucking company’s owners.

MORE THAN A MOMENTARY LAPSE?

The Supreme Court of Canada has clarified the “marked departure” standard in two particularly important decisions: R. v. Beatty and R. v. Roy.

The 2012 Roy decision was a case in which a driver in B.C. turned onto a highway in foggy conditions from a snow-covered side road and directly into the path of a semi. The resulting collision killed a passenger. The driver argued it was too foggy to see the semi coming; he was convicted at trial of dangerous driving, but the Supreme Court of Canada overturned it.

Michael Plaxton, a University of Saskatchewan law professor, said that in the Roy case, it wasn’t enough to show the act itself was inherently dangerous. It’s whether there’s enough evidence to conclude the driver’s conduct represented a marked departure from the norm.

“The defendant may have acted somewhat carelessly in proceeding as he did, but — and this is critical — even reasonably prudent drivers have momentary lapses of attention and errors in judgment,” he said. “That alone is not enough to warrant a criminal conviction.”

The driver’s training doesn’t change the standard.

As the driver of a large commercial vehicle, Sidhu would have needed extra training and testing to obtain a special driver’s licence.

But according to case law, the “marked departure” consideration is the same for Sidhu as it would be for any other person driving an ordinary car.

“Any additional training and experience an individual receives as a commercial driver would not, as a matter of current law, change the standard against which the defendant’s conduct will be measured,” Plaxton said.

He noted this can be a disadvantage to defendants, such as in cases where they argue their youth or inexperience as drivers should mean a lower standard of “marked departure” applies.

“In a case like this, the uniform standard seems to work to the benefit of the defendant, who can claim he is not held to a higher standard,” Plaxton said.

Ultimately, if a criminal conviction fails, the families could still sue Sidhu. The threshold for civil liability is lower, requiring a judge to conclude on the balance of probabilities that the driver showed negligence.

Sidhu is expected to have his first court appearance in the coming week.