Howie, Sacks, and Henry LLP has a well-established and well-earned reputation for being a firm that handles complex civil cases involving serious personal injuries. We are not a firm whose lawyers normally appear as counsel for clients facing criminal or quasi-criminal charges in court.
But, recently we found ourselves in that very situation. In this blog post, we explain our decision to take on our civil client’s quasi-criminal case, our application to dismiss the due to violation of the Charter of Rights and Freedoms, and the Justice of Peace’s decision to rule in favour of our application while also finding our client not guilty on all counts at trial.
A tragic accident and questionable charges
On the evening of January 27, 2021, Skeeter Ba Thain was driving a sedan on Essex County Road 18 in a rural part of the Municipality of Leamington. The driver of a semi-tractor trailer, which was carrying a large, dark, tarped-up load, was attempting to back up into a private driveway that was perpendicular to the road. Based on Ms. Ba Thain’s point of view, the semi-tractor trailer’s truck headlights were positioned facing her in the opposing lane of traffic. The truck’s load was fully across the lane she was driving in.
Tragically, Ms. Ba Thain did not see this lane obstruction in time to avoid a collision. The accident resulted in the deaths of two of her passengers (personal friends and co-workers), and serious injuries to herself and her sister.
Ms. Ba Thain was charged with careless driving. At a subsequent trial, Justice Holly DeBacker noted the issues in dispute before her were whether Ms. Ba Thain drove “without due care and attention or without reasonable consideration for others,” and more narrowly, whether the “visibility or lack of visibility of the semi-trailer she collided with” was a contributing factor in the accident.
Access to justice
Ms. Ba Thain initially retained us to assist her in a civil action against the semi-truck driver. Soon, we learned she was charged in connection with this accident. Since the outcome of this criminal case would have profound implications for her civil case, we took the exceptional step of offering to represent her in the criminal case. There were a number of issues that prompted us to make this decision.
First, Ms. Ba Thain is a uniquely vulnerable client whose personal history jeopardized her ability to obtain justice. She belongs to a marginalized group called the Karen, and arrived in Canada as a refugee. Ms. Ba Thain had limited means to pay for a defence lawyer, and the result of this charge would have profound implications in her civil claim for compensation of her significant injuries.
Second, we found it preposterous that she was charged based on the information and disclosure we had.
In this instance, witnessing the potential infringement of an accused’s right to access justice was so abundantly clear to us, that we took the unprecedented step of representing Ms. Ba Thain at her quasi-criminal trial.
Strict liability and a contextual analysis of the facts
On September 14, 2023, Justice of the Peace DeBacker opted to hear both the Charter 11(b) delay application and the trial itself. In her dual decision, issued on December 7, 2023, the Justice of the Peace first considered the quasi-criminal charges.
In R. v. Ba Thain, 2023 ONCJ 555 (CanLII), Justice of the Peace DeBacker noted that a finding of careless driving, a strict liability offence, can only be made after a contextual analysis of the facts to determine whether the defendant was “operating his or her vehicle on a highway without due care and attention or without reasonable consideration for other persons using the highway.”
At issue was whether the semi-tractor trailer was visible to her at the time of the accident. Here, Justice of the Peace DeBacker noted a lack of evidence to prove that certain features designed to enhance the visibility of the tractor-trailer were either in use at the time of the accident or likely visible. Her Worship found:
“There exists other rationale for the collision other than Ms. Ba Thain’s driving falling below a standard expected of reasonably prudent drivers. Rather, another plausible explanation exists. Firstly, there were no hazard-warning lights to alert any approaching driver of the obstacle, during the dark of night in the heart of winter. Secondly, the court cannot conclude the semi-trailer’s amber side lights were on, leaving one, sole narrow reflective strip of tape on the semi-trailer as the only means to alert any approaching driver of the hazard. The one narrow strip of reflective tape was insufficient, given the effect of the mobility of the semi-trailer’s mass and the semi-tractor’s headlamps, to alert Ms. Ba Thain as she approached a completely unexpected hazard with virtual to no warning.”
Justice of the Peace DeBacker found Ms. Ba Thain not guilty on all three counts brought against her.
Breach of Charter rights
A Section 11 (b) Charter delay application sought to dismiss the charges due to unreasonable delays in setting down the trial date that would be prejudicial to a defendant. In this case, the trial was held 31 and a half months after the date of the collision, or 27 months after Ms. Ba Thain was charged.
Justice of the Peace DeBacker agreed there was a significant delay due to slow disclosure and lack of cooperation on the part of the police to facilitate disclosure of crucial evidence:
“…disclosure sought was not only mere or trifling, it was significant and reasonable. There were discrepancies in police-sourced information regarding what evidence a dashboard camera mounted on the semi-tractor may have held. Ultimately, it was determined police lacked the know-how to obtain the dashboard camera video. It became necessary for [the] defence to hire their own forensic engineer, whose report [was] issued November 24, 2022, some 17 months after the charge date.”
Her Worship found that a Charter breach existed, and that Ms. Ba Thain was prejudiced as a result:
“Ms. Ba Thain has suffered psychological harm awaiting conclusion of this important matter. The delay falls primarily at the feet of the prosecution. This court would have granted the Charter motion for delay, however, I have already found the defendant not guilty on all counts.”
Hope starts here
It’s heartbreaking to think about how you or I might feel if we were in Ms. Ba Thain’s position. First, as a politically persecuted refugee, with limited financial means, she is involved in a tragic motor vehicle accident which not only claimed the lives of two of her friends, but also resulted in critical injuries to herself and her sister. Then, she not only learned that she would face quasi-criminal charges from the accident, but that her attempt to seek compensation for her recovery and losses would remain in limbo while disclosure sought from the police proceeded at a glacial pace.
At a point when she may have felt hopeless, we were determined to show her that at HSH, Hope Starts Here.
To learn more about how the team at HSH can help if you or a loved one has been seriously injured in an accident, contact us for a free consultation.
