PROVINCE OF PRINCE EDWARD ISLAND IN THE SUPREME COURT - TRIAL DIVISION Citation: R. v. Veniot 2007 PESCTD 37 Date: 20071210 Docket: S2-GC-26 Registry: Summerside HER MAJESTY THE QUEEN - against - JOHNATHAN RUSSELL VENIOT BEFORE: The Honourable Justice Wayne D. Cheverie Appearances: David P. O Brien, Q.C., solicitor for the Crown Robert McNeill, solicitor for the accused Place and dates of hearing Place and date of oral decision & judgment Summerside, Prince Edward Island November 5, 6 & 7, 2007 Summerside, Prince Edward Island December 10, 2007
Citation: R. v. Veniot 2007 PESCTD 37 S2-GC-26 HER MAJESTY THE QUEEN - against - JOHNATHAN RUSSELL VENIOT Prince Edward Island Supreme Court - Trial Division Before: Cheverie J. Heard: November 5, 6 & 7, 2007 Judgment: December 10, 2007 [12 pages] Criminal law - accused charged with impaired driving and dangerous driving causing death - evidence that accused was the operator of the motor vehicle at the time of the accident fell short of proof beyond a reasonable doubt - accused found not guilty. CASE CONSIDERED: Ellis v. R. 2006 PESCAD 25. David P. O Brien, Q.C., solicitor for the Crown Robert McNeill, solicitor for the accused
Cheverie J.: (orally) [1] Sometime late in the evening of November 25, 2006, just beyond the intersection of the Chaisson Road, the Shields Road, and Route 152 in Prince County, a horrific single vehicle accident occurred. There were four individuals in the 1995 Pontiac Grand Prix automobile which was registered to Earl Franklin Adams. Those persons were the accused, Johnathan Russell Veniot, Christina Leona Adams, Amy Elizabeth Gallant, and Marla Jean McNeill. The accident was horrific because after the vehicle left Rte. 152, struck a power pole, then struck an embankment, and then flipped backwards coming to rest upside down against the power pole it had previously struck, Amy Elizabeth Gallant and Marla Jean McNeill were seriously injured and subsequently died. They were not wearing seat belts. [2] On the 27 th day of June, 2007, an indictment was laid against Johnathan Russell Veniot alleging he committed four offences as set out in the four counts of the indictment. That indictment reads as follows: Johnathan Russell Veniot, 1942 Route 140, Milburn, in the Province of Prince Edward Island, stands charged that he did on or about the 25 th day of November, A.D. 2006, at or near St. Edward, in the Province of Prince Edward Island: Count #1 did operate a motor vehicle while his ability to operate the vehicle was impaired by alcohol or a drug contrary to Section 253(a) of the Criminal Code of Canada and amendments thereto; Count #2 did operate a motor vehicle in a manner that was dangerous to the public, having regard to all the circumstances including the nature, condition and use of such place at which the motor vehicle was being operated and the amount of traffic that at the time was or might reasonably be expected to be at that place and did thereby cause the death of Amy Elizabeth Gallant contrary to Section 249(4) of the Criminal Code of Canada and amendments thereto; Count #3 did operate a motor vehicle in a manner that was dangerous to the public, having regard to all the circumstances including the nature, condition and use of such place at which the motor vehicle was being operated and the amount of traffic that at the time was or might reasonably be expected to be at that place and did thereby cause the death of Marla Jean McNeill contrary to Section 249(4) of the Criminal Code of Canada and amendments thereto;
Page: 2 Count #4 did operate a motor vehicle in a manner that was dangerous to the public, having regard to all the circumstances including the nature, condition and use of such place at which the motor vehicle was being operated and the amount of traffic that at the time was or might reasonably be expected to be at that place and did thereby caused bodily harm to Christina Leona Adams contrary to Section 249(3) of the Criminal Code of Canada and amendments thereto. In summary, Johnathan Russell Veniot has been charged with impaired driving, two counts of dangerous driving causing death, and one count of dangerous driving causing bodily harm. During the trial on November 7, 2007, the Crown entered a stay of proceedings on Count #4. What must now be determined is whether the Crown has proven any, some, or all of the counts in the indictment against Johnathan Russell Veniot according to law. Presumption of innocence [3] In every criminal case there are certain basic principles which apply. If this trial were with a jury, I would be instructing them on these basic principles because they would be the triers of fact. Since I am the trier of fact in this case, I must be cognizant of those same principles about which I would instruct a jury. [4] In our law, Johnathan Russell Veniot is presumed to be innocent, unless and until the Crown has proven his guilt beyond a reasonable doubt. This presumption of innocence means that Johnathan Russell Veniot started the trial with a clean slate. The presumption stays with him throughout the case, including my deliberations at the end of the trial. It is only defeated if, and when, the Crown has satisfied me beyond a reasonable doubt that Johnathan Russell Veniot is guilty of the crimes charged. Burden of proof [5] Johnathan Russell Veniot does not have to present evidence or prove anything in this case, in particular, that he is innocent of the crimes charged. From start to finish, it is the Crown which must prove that Johnathan Russell Veniot is guilty beyond a reasonable doubt. It is for the Crown to prove Johnathan Russell Veniot s guilt beyond a reasonable doubt and not Johnathan Russell Veniot who must prove his innocence. I must find him not guilty of impaired driving, or dangerous driving causing death, unless the Crown satisfies me beyond a reasonable doubt that he is guilty of those offences. The burden on the Crown is to prove each of the elements of the three counts in the indictment beyond a reasonable doubt.
Page: 3 Proof beyond a reasonable doubt [6] The standard of proof required for conviction is proof beyond a reasonable doubt. The phrase beyond a reasonable doubt is a very important part of our criminal justice system. A reasonable doubt is not a far-fetched or frivolous doubt. It is not a doubt based on sympathy or prejudice. It is a doubt based on reason and common sense. It is a doubt that logically arises from the evidence, or the lack of evidence. Mitchell C.J. of the Appeal Division of this Court pointed out that the role of the trier of fact in a criminal trial is not to choose among contradictory versions of events, but to determine whether the Crown has proven its case beyond a reasonable doubt. (See Ellis v. R. 2006 PESCAD 25, December 6, 2006.) [7] It is not enough for me to believe that Johnathan Russell Veniot is probably, or likely, guilty. In those circumstances, I must find him not guilty because the Crown would have failed to satisfy me of his guilt beyond a reasonable doubt. Proof of probable or likely guilt, is not proof of guilt beyond a reasonable doubt. [8] However, I must also keep in mind it is nearly impossible to prove anything with absolute certainty. The Crown is not required to do so. Absolute certainty is a standard of proof that is impossibly high. [9] If, at the end of the case, after considering all the evidence, I am sure that Johnathan Russell Veniot committed any of the offences charged, I should find him guilty of those offences, since I would then be satisfied of his guilt beyond a reasonable doubt. On the other hand, if, at the end of the case, based on all of the evidence, or the lack of evidence, I am not sure that Johnathan Russell Veniot committed the offences charged, then I should find him not guilty of them. Elements of the offences Count #1 - impaired driving [10] Johnathan Russell Veniot is charged with impaired operation of a motor vehicle. It is formally set out in count #1 in the indictment. In order for me to find him guilty of impaired operation of a motor vehicle, the Crown must prove each of these essential elements beyond a reasonable doubt; (i) that Johnathan Russell Veniot operated a motor vehicle; (ii) that Johnathan Russell Veniot intended to operate a motor vehicle after he had consumed alcohol; and (iii) that Johnathan Russell Veniot s ability to operate a motor vehicle was impaired by alcohol. (No evidence was led on impairment by a drug.)
Page: 4 [11] If the Crown does not satisfy me beyond a reasonable doubt of each of these essential elements, then I must find Johnathan Russell Veniot not guilty of operating a motor vehicle while his ability to do so was impaired. Counts #2 and 3 - dangerous driving causing death [12] Johnathan Russell Veniot is also charged with dangerous driving of a motor vehicle causing the deaths of Amy Elizabeth Gallant (count #2) and Marla Jean McNeill (count #3). For me to find Johnathan Russell Veniot guilty of dangerous operation of a motor vehicle causing death, the Crown must prove each of these essential elements beyond a reasonable doubt: (i) that Johnathan Russell Veniot operated a motor vehicle; (ii) that Johnathan Russell Veniot operated the motor vehicle in a manner that was dangerous to the public; and (iii) that Johnathan Russell Veniot s operation of the motor vehicle caused the deaths. [13] If the Crown has not satisfied me beyond a reasonable doubt of each of these essential elements, I must find Johnathan Russell Veniot not guilty of dangerous operation of a motor vehicle causing death. [14] As may be readily seen from a reference to the essential elements of each of the offences in the indictment, proof beyond a reasonable doubt that Johnathan Russell Veniot was the operator of the motor vehicle at the time of the accident, is an essential element in each of the three counts. If the Crown has failed to prove this essential element beyond a reasonable doubt, then the Crown case fails because this is an essential common element to each of the three counts in the indictment. Whether Johnathan Russell Veniot was the operator of the motor vehicle at the time of the accident has clearly been put in issue in this case. Therefore I must review the evidence on this essential element to determine whether the Crown has proven it beyond a reasonable doubt before moving on to the other essential elements of each of the offences. Analysis [15] The evidence bearing on the issue of who was operating the motor vehicle at the time of the accident is found variously in the testimony of nine Crown witnesses and two defence witnesses. I shall refer to the evidence of each of those witnesses, but, clearly, the evidence of Christina Leona Adams, the girlfriend of the accused and the only other person besides the accused to survive the accident, is crucial.
Page: 5 Witnesses Bennie Deagle [16] Deagle operates a gas station in conjunction with a general store and has done so for 18 years. On November 25, 2006, he identified Johnathan Russell Veniot as the driver of a vehicle which purchased gas at his premises. There were three girls in the car with Veniot. When asked directly if Veniot was the driver of the vehicle on that occasion, he responded by saying he was to the best of my ability. He estimated the time of Veniot s gas purchase to be around 9:30 p.m. He says he closes his premises at 10 p.m. and he actually left that evening at 10:07 p.m. [17] Deagle testified that when Veniot s car left the gas station, it went in a direction towards the Miminegash Harbour which is in the opposite direction from the place of the accident. Mr. Deagle s testimony was direct and straightforward and I have no reason to disbelieve him. However, I accept his evidence as to the time of Veniot s attendance at the gas station to be an approximation as Deagle suggested. Therefore, I find as fact Veniot was driving the vehicle within an hour or so of the accident, and when he left Bennie Deagle s he travelled toward Miminegash Harbour. Charles John Boyuk [18] On November 25, 2006 he was approached by a man whom he subsequently identified as the accused, and was asked to call 911. He did not make that call himself, but testified that someone else did. Instead, Boyuk went to the accident scene which was a very short drive away. At the scene, he asked Veniot who was driving and Veniot said he couldn t recall. Boyuk indicated his first contact with Veniot was around 9 p.m. However, he never checked the clock to verify the time and when challenged on this issue in cross-examination, he testified he s sure the accident occurred after 9 p.m. Donna Doucette [19] Doucette had experience as a paramedic and as a licensed practical nurse and on November 25, 2006 she advised an RCMP officer at the accident scene of this experience and offered to help. The officer was dealing with Veniot at the time and with the consent of the officer, Doucette took Veniot back to the police car and placed him there. She had some conversation with Veniot and, in particular, she asked him if he was driving the car. She testified that he hesitated and then said I don t remember. Kenny Ramsay
Page: 6 [20] Ramsay is an EMS worker and on the 25 th of November, 2006, he was also a volunteer firefighter. In that capacity he was called to the accident scene to lend assistance. [21] At the scene, he came into contact with a man experiencing shortness of breath. That person was identified as Veniot. He subsequently accompanied Veniot to the O Leary Hospital and en route, he asked Veniot if he was the driver of the vehicle in the accident. Veniot said he didn t know. A little later, Ramsay reports that Veniot told him he was ejected from the car but didn t remember the accident. Cst. Paula Kalkman [22] Cst. Kalkman attended at the accident scene at 9:45 p.m. on November 25, 2006. She received the call some 15 to 20 minutes earlier. [23] Mr. Boyuk had spoken to her and identified Veniot to her. She approached Veniot to see if he was okay and asked him if he was involved in the collision. Veniot s response was to advise her that he fell on the gate at the end of the driveway and hurt his back. The gate is a local expression referring to the driveway. While Veniot was seated in the back seat of the police vehicle, she asked him again who was driving. He responded by saying he couldn t remember; he didn t know what happened. The constable also testified that after other police officers arrived on the scene, she went back to speak to Veniot for a third time. Again, she asked him who was driving. She says Veniot said something to the effect he didn t know. Cst. Annick Theriault [24] On November 25, 2006, Cst. Theriault got a call at 9:35 p.m. In response to the call she attended at the accident scene. Cst. Kalkman and Cst. MacLean were already there. She was accompanied by Auxiliary Cst. Arsenault. [25] Cst. Theriault viewed the scene and then went to see the person in Cst. Kalkman s police vehicle. It was Veniot. She spoke with him. She asked him what happened and who was driving. She testified Veniot didn t recall anything about who was driving. He said he just woke up and went for help. Cst. Lorne MacLean [26] Cst. MacLean was at the accident scene at 9:55 p.m. on November 25, 2006. He says Cst. Kalkman was there when he arrived. While at the scene, he went to Cst. Kalkman s police vehicle and saw Veniot seated in the back seat on the
Page: 7 passenger s side. It was 10:27 p.m. He asked Veniot who was driving the vehicle. Veniot said he didn t know who was driving. [27] At 11:45 p.m., Cst. MacLean was at the emergency room at the O Leary Hospital still trying to establish who was the driver of the vehicle at the time of the accident. He had some conversation with Veniot at that time. He says Veniot told him he remembers waking up at the accident scene. After getting out of the vehicle, Veniot said he ran to get help across the road. Veniot also told the constable they had switched drivers two or three times during the day and he thought he was driving when he left his house that day. [28] Cst. MacLean also testified that at 11:53 p.m. he was with Veniot in the x-ray room at the hospital. Veniot stated he didn t know who was driving the vehicle. All he knew was waking up at the gate. After some further conversation, Veniot stated again he didn t know who was driving the vehicle. In cross-examination, the officer confirmed Veniot said he thought he was driving the vehicle earlier. Cst. Dwayne Pardy [29] Unlike the other officers whose testimony related to statements made by the accused at the accident scene and shortly thereafter, Cst. Pardy was sent to the O Leary Hospital on November 26 th, 2006 in order to obtain a warned statement from Veniot. He arrived there at 12:50 p.m. and went directly to Veniot s room. After advising Veniot of his Charter rights, he told Veniot he was investigating a case of impaired driving causing bodily harm and a case of dangerous driving causing death. Veniot indicated he wanted to call a lawyer and Cst. Pardy assisted him in doing so. He then left Veniot to speak to counsel in private. Once that conversation ended, the constable reentered the room and asked Veniot if he wanted to give a statement. Veniot said no. [30] Notwithstanding Veniot s clear assertion that he did not wish to make a statement, the constable asked him one question. Initially in his direct testimony, the officer said he asked Veniot what type of vehicle he was driving the night before. The officer then used his supplementary report to refresh his memory and then testified the question he asked was what was Veniot driving at the time of the collision. The import of these two questions are quite different. According to the officer, Veniot responded to the question by saying A green Grand Prix. [31] This exchange was fully explored in cross-examination. There is no doubt but that the vehicle in question was blue in colour, and not green. Numerous photos of the vehicle appear in Exhibit C-5. Cst. Pardy was not at the accident scene on the night of November 25, 2006, and testified he had only been briefly brought up to
Page: 8 speed on November 26 th prior to being dispatched to the O Leary Hospital. [32] The constable also testified that the question he put to Veniot and Veniot s supposed answer to the question did not appear in his notes. Initially, he didn t know why he didn t put that question and answer in his notes, but he did include the question and answer in his supplementary report which he typed up approximately two hours later. A reasonable bystander might question why the officer would not include such an important revelation in his notes at the time it was made, when he knew he was sent to obtain a statement concerning an accident involving death. I know of no requirement that he make the notation immediately, but given the importance of establishing the driver of the vehicle, one might reasonably think that is the point in time at which it ordinarily would be made. However, the fact he wrote the statement later does not, in and of itself, detract from the statement. [33] Cst. Pardy testified the accused s father, Russell Veniot, Sr. was present at the time of this statement by the accused and he says he was somewhat distracted by his conversation with Russell Veniot Sr. This he offered as his explanation as to why he didn t put Johnathan Russell Veniot s statement in his notes shortly thereafter. Whether that was the reason or not, the constable confirmed that Mr. Veniot, Sr. was present. He testified later in the trial and offered a different version of these events which I shall highlight shortly. [34] Cst. Pardy was asked in cross-examination how sure he was that the accused said he was driving a green Grand Prix. The constable responded by saying he was 100% sure. His degree of certainty must be considered in the context of his entire testimony, particularly, the two versions of the statement allegedly made by Veniot; the admitted distraction by Russell Veniot, Sr.; and the fact he recorded the statement some two hours later. Russell Veniot [35] For ease of reference on the statement at the hospital, I shall deal with the evidence of the accused s father, Russell Veniot, who was called by the defence. He recounted the events at the hospital on November 26 th, 2006 and confirms that Cst. Pardy left the room when he and his son tried to contact a lawyer. A lawyer was eventually contacted and after the accused spoke to counsel, the constable reentered the room. Mr. Veniot says the constable asked the accused if he wanted to make a statement to which he says his son replied that he wanted his lawyer present. Mr. Veniot then went on to say the constable mentioned or asked: Who was driving the green Pontiac? According to Russell Veniot, he says he immediately responded by saying it wasn t green, it was blue. Johnathan Russell Veniot, the accused, said nothing in response to the question.
Page: 9 [36] In cross-examination by Crown counsel, Mr. Veniot indicated he has some difficulty hearing from a distance. He agreed he was worried and upset on November 26, 2006 and admits there are things he can t remember about that day. He acknowledged he was very emotional at the time. However, he remained firm that as for the reference to the green Grand Prix, it was the officer who made this suggestion and that no response came from the accused. [37] These contradictory versions of what was said at the O Leary Hospital on November 26 th, 2006 must be considered within the context of all of the evidence on the issue of who was operating the motor vehicle at the time of the accident. It is a bit odd that a person in the position of the accused who had just spoken to counsel and indicated he did not wish to make a statement, would immediately respond to a question from the officer, the answer to which might incriminate him. [38] However, the supposed admission is further complicated if one accepts the evidence of Cst. Pardy inasmuch that he is convinced the accused reported it was a green Grand Prix when it clearly was not. Now it may be the accused s father was engaging the officer in conversation at this critical point and may have distracted him thereby causing some confusion as to what was said when the officer subsequently made a notation a couple of hours later. There is no doubt but that Mr. Veniot, Sr. was upset at the time and was supportive of his son. [39] The evidence of Russell Veniot, Sr. cannot be discounted just because it was his son who was under investigation. As I observed Mr. Veniot s testimony, he appeared sincere in his recollection of the events. As for Cst. Pardy, Mr. Veniot, Sr. referred to him as being nice. It appears the constable was helpful to Mr. Veniot, Sr. in these trying circumstances, but the fact he did not make a notation of the statement allegedly made by the accused until some time later is troublesome. For his part, Mr. Veniot, Sr. would have every reason to be focussed on the detail of his son s interaction with Cst. Pardy given the seriousness of the situation. These contradictory versions of the events at the O Leary Hospital on November 26, 2006 must be considered in the context of all the evidence, or lack of evidence. Christina Leona Adams [40] Ms. Adams was at the time of the accident, and continues to be, in a relationship with the accused Johnathan Russell Veniot. He was, and is, her boyfriend. Her testimony is replete with the following answers to most of the key questions: I don t remember ; I don t recall. [41] Here is what she says she does recall: sometime on November 25, 2006 she
Page: 10 left Johnathan Russell Veniot s residence with him in her father s car. They went to Marla McNeill s so Adams could see Marla. Adams is not sure if there were any stops on the way. All three talked at Marla s house. They then left Marla s and went to pick up Amy Gallant. There were no stops en route. They picked Amy up and left. Adams then recalls they purchased some gas and after that the accident happened. [42] Adams doesn t remember going to Miminegash Harbour between the stop at the gas station and the accident. She doesn t remember arriving at the point of the accident. After they left the accused s residence and picked up Marla and Amy and arrived at the gas station, she believes the accused was driving the whole time. She doesn t remember any of the events of the night of the 24 th of November when she stayed at Veniot s residence. She doesn t recall whether alcohol was consumed and if it was, how much was consumed and by whom. At the time of the accident she was 17 years old so she could not legally purchase alcohol for herself. When questioned as to where she would obtain her alcohol, she didn t know. [43] Adams has been living with the accused since sometime after Christmas of 2006 and when questioned by Crown counsel about whether they had any conversation about the accident, she reluctantly admitted they had some - here and there - but she maintains she never talked to the accused about how the accident happened. She doesn t remember anything. She did concede that earlier on November 25, 2006 she was driving the vehicle in question, but she doesn t know whether it was in the morning or the afternoon. However, she maintains she was not driving when she left Veniot s residence, but her response was I don t think I was. Again, she says she is pretty sure she wasn t driving. After picking up Amy, again she says she is pretty sure Veniot was driving. [44] It should be pointed out at this point in my review of the evidence that the Crown takes its witnesses as they find them. It is the obligation of the Crown to put all of the evidence before the court. It is not the role of the Crown to seek convictions, but, rather, to lay everything before the court for consideration. That obligation is clearly illustrated in the evidence of Christina Adams. She was, to say the least, uncooperative. [45] Crown counsel made a motion under s. 9 of the Canada Evidence Act with respect to her inconsistent prior statements. I allowed the motion and Crown proceeded accordingly. When confronted with the apparent inconsistencies between her testimony in court and prior out of court statements, Ms. Adams did not readily adopt her earlier statements. She was evasive. In answer to some questions, she was flippant. She would have me believe that she lives with the man who is charged with the offences in this indictment and yet she never had a conversation with him about how the accident happened. She consumed alcohol at times prior to the accident
Page: 11 and yet couldn t indicate who supplied her with the alcohol. She is pretty sure Veniot was driving from the time they left his residence until they arrived at the gas station, but then she says she doesn t remember anything from the time they left the gas station until after the accident. In cross-examination, again she says she is pretty sure he was driving. Then in re-direct examination by Crown counsel, the following exchange appears: Q. Simple question, were you driving the vehicle that Amy and Marla were killed in? A. Uhmm don t know. Johnathan was at the time of the accident whenever we had left to go pick Marla up he was driving. I might have been driving earlier that day, I m not really sure of the whole day, like I said I remember bits and pieces but-- Q. But you weren t driving at the time of the accident? A. No. Even in this exchange, Adams is unsure when she says she might have been driving earlier that day and she only remembers bits and pieces. [46] The accused indicated in comments he made to other peace officers that they changed drivers two or three times that day. Some support for that statement is found in the evidence of the sister of the accused, Heather Buote. On November 25, 2006 at approximately 7:00 p.m. she saw her brother in the passenger s seat and Christina Adams in the driver s seat of the vehicle in question. Adams was driving. This evidence was uncontradicted and unchallenged by the Crown. I accept it, and find as fact, that the accused was not the sole driver of the vehicle in question on November 25, 2006. Christina Adams also drove that vehicle on that date. But the question remains, who was the driver of the vehicle at the time of the accident? Based on all of the evidence, or lack of evidence, has the Crown proven beyond a reasonable doubt that Johnathan Russell Veniot was operating the motor vehicle at the time of the accident? [47] The evidence of Christina Leona Adams is a key component of the Crown s case. After watching her and listening closely to her testimony and reflecting on her evidence, the only thing that can be certain about her evidence is its uncertainty. She is at best an evasive, uncooperative, and unreliable witness; and at worst, she is a liar. Even if I accept her final answer to Crown counsel in redirect examination, I must do so in the context of her entire evidence where she remembers very little and when she does remember something, like who was driving at the time of the accident, she expresses the strength of her belief by saying she is pretty sure.
Page: 12 [48] Christina Leona Adams is not on trial here. Johnathan Russell Veniot is. His statements to police officers and other persons on the scene of the accident to which I ve already referred maintain a consistent position that when asked if he was driving the vehicle, he responded by saying he couldn t recall; he didn t know; or he didn t remember. There may be reasons why he couldn t remember. Perhaps it was the result of the accident itself. Perhaps it was the result of the consumption of alcohol which impaired his ability to recall. I don t know. What I do know is he made no admission that he was driving the vehicle except for the exchange with Cst. Pardy. I have already discussed the exchange between Cst. Pardy and the accused and Russell Veniot, Sr. As Mitchell C.J. pointed out in Ellis, it is not my job in the fact finding process to choose among contradictory versions of the facts. Rather, it is my job to determine whether the Crown has proven its case beyond a reasonable doubt. Conclusion [49] On the whole of the evidence, or lack of evidence, I must determine whether the Crown has discharged the burden on it to prove its case beyond a reasonable doubt. If I conclude that Johnathan Russell Veniot was probably driving the vehicle at the time in question, then the Crown would have failed to prove that essential element of each of the offences beyond a reasonable doubt. The fact that Johnathan Russell Veniot was probably driving the vehicle at the time of the accident, or a finding that I am pretty sure he was driving the vehicle at the time of the accident is not sufficient. In fact, I am not sure Johnathan Russell Veniot was operating the vehicle at the time of the accident. It would be unsafe to convict on the strength of the testimony of Christina Leona Adams because of the frailties of her testimony to which I ve already referred. It would be equally unsafe to enter a conviction on the strength of a confusing exchange among Cst. Pardy, Russell Veniot, Sr., and the accused at the O Leary Hospital on November 26 th, 2006. [50] In my view, on the whole of the evidence, I m not satisfied the Crown has proven the essential element of operation of the motor vehicle by Johnathan Russell Veniot at the time of the accident on November 25, 2006. This does not mean he was not driving at the crucial time, but, rather, the Crown s case falls short of the required degree of proof in this case. That being so, I must find him not guilty on each of the three counts in the indictment. December 10, 2007 J.