 |
| John L. Hill |
Psutka defended Keith Wheeler when Wheeler appealed his conviction for impaired driving causing death and criminal negligence causing death and received a sentence of five years’ imprisonment. Reviewing the Appeal Court’s judgment (R. v. Wheeler, 2025 ONCA 781), one could expect that Psutka was describing the Wheeler decision.
On Sept. 29, 2018, Jennifer Stansel died when her inoperable ATV, which was being towed by her partner, Wheeler, flipped on a rural road. Wheeler used a short fabric sling as a tow strap between the two ATVs. When Wheeler drifted to the left, the strap got caught in his rear tire, pulling Stansel’s ATV sideways and causing it to collide and overturn.
Aliaksei Brouka: ISTOCKPHOTO.COM
There is no doubt that Wheeler was not inherently bad. He was helping his partner, whose vehicle had become inoperable, in the best way he knew and with his partner’s consent. Yet tragedy happened.
The appeal raised four main issues: (a) whether the trial judge erred in finding the towing setup inherently dangerous; (b) whether the judge misinterpreted evidence about Wheeler’s driving and lack of caution; (c) whether the judge erred in establishing causation; and (d) whether the judge erred in concluding there was a marked and substantial departure from reasonable conduct to support the criminal negligence conviction.
Wheeler did not contest the finding that alcohol impaired his ability to operate the ATV. The court determined Wheeler was unfit to operate or tow another vehicle, and the accident happened in the context of alcohol impairment.
Was his driving inherently dangerous? Wheeler argued that the judge misinterpreted both expert and lay evidence, wrongfully excluding expert testimony from collision reconstructionist Constable Roy and improperly relied on the civilian witness D’Aoust’s lay opinion that the tow strap was too short.
At trial, D’Aoust, an experienced ATV rider, testified that the tow strap (about six feet long) was “pretty short,” explaining that in his ATV club, they used 25-foot ropes for safety and braking distance. The trial judge allowed his comment as an observation based on personal experience, not as an expert opinion. Yet the expert witness, Constable Roy, described the towing setup in detail and agreed that it was possible to tow safely with such a short strap if proper precautions were taken, including maintaining tension, avoiding offsets and maintaining clear communication between drivers. However, he acknowledged the collision occurred when those precautions were not maintained.
The Appeal Court found Roy was qualified only as a collision reconstructionist, enabling him to describe how the accident occurred, not to assess towing safety. The trial judge’s earlier voir dire ruling did not extend his qualifications to include opinions on whether the tow setup was safe or appropriate. His report merely described the tow strap’s mechanical role, not its suitability. The case of R. v. Marquard, [1993] 4 S.C.R. 223, which would have allowed evidence that the expert was qualified to give even though not qualified to opine on a particular subject, did not apply, as the trial judge correctly ruled on admissibility and did not rely on unqualified expert opinion.
The court agreed that the trial judge slightly misstated Roy’s evidence. He said Roy only found the strap “strong enough,” when Roy had also testified that it was “not an inappropriate length.”
However, this minor misapprehension did not affect the verdict or constitute a legal error. The judge had already determined that Roy was not qualified to comment on safety, so this misstatement did not significantly impact the reasoning.
Wheeler argued that the trial judge wrongly relied on inadmissible lay opinion from witness D’Aoust, who said the tow strap was “pretty short” and explained his own towing practices.
The court disagreed and carefully distinguished two kinds of statements. The opinions on length were admissible. D’Aoust’s description (“short tow strap”) was a straightforward factual observation and permitted for lay witnesses who can’t precisely measure but describe what they saw.
His opinions on safe towing practices were also admissible solely to illustrate what a prudent person would do, not as expert evidence on what is objectively safe. The trial judge clarified that he used this only to establish the standard of care, not to prove danger directly. The judge’s conclusion that the tow setup was inherently dangerous was mainly based on Roy’s collision reconstruction evidence, not D’Aoust’s opinions. His comment indicating a preference for D’Aoust’s evidence meant he accepted D’Aoust’s prudent towing practices as reflecting what a reasonable person would do, not that he regarded D’Aoust as an expert. There was no error in admitting or relying on D’Aoust’s evidence; the finding that the tow setup was inherently risky was adequately supported.
Wheeler also argued that the trial judge misinterpreted the evidence by concluding he drove without caution, especially by relying on testimony that he yelled while crossing the bridge. The trial judge found that Wheeler’s unexplained yelling while looking away from the person he was towing indicated a lack of concentration and supported a finding of impairment. The court agreed that this inference was reasonable for the judge to make. There was no credible reason for Wheeler to yell and it was reasonable to infer that he was distracted.
Reading the trial judgment as a whole, it was clear that Wheeler’s conduct posed an “obvious and serious risk”: (1) He operated an inherently dangerous tow while impaired; (2) He failed to concentrate; and (3) He drifted into the opposite lane near a blind corner. The judge’s findings satisfied the requirements of R. v. Roy, 2012 SCC 26, to show how the conduct went markedly beyond mere carelessness. There was no legal error; the conviction for criminal negligence was upheld.
Wheeler will be imprisoned and his life ruined for this unfortunate situation. Is the state inherently good for demanding this extreme penalty?
John L. Hill practised and taught prison law until his retirement. He holds a JD from Queen’s and an LLM in constitutional law from Osgoode Hall. His most recent book, Acts of Darkness (Durvile & UpRoute Books), was released July 1. Hill is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the (True Crime) Story (AOS Publishing). Contact him at johnlornehill@hotmail.com.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
Interested in writing for us? To learn more about how you can add your voice to Law360 Canada, contact Analysis Editor Peter Carter at peter.carter@lexisnexis.ca or call 647-776-6740.