R. v. Davis-Locke, 2020 ONCJ 13 (CanLII)

Date: 2020-01-07

Facts

On August 4, 2018, a little after 7 AM on a Saturday, 24-year-old Mr. Kamau Davis-Locke was driving a Volvo S60 going eastbound on Highway 9 in the vicinity of Cardinal Golf Club. Highway 9 is a four-lane highway with a center turn lane and a posted speed of 80 km/h. Mr. Davis-Locke fell asleep behind the wheel, crossed the median lane and struck three westbound vehicles. The first two vehicles struck were sideswipes whereas the third vehicle was struck head-on. The third vehicle was a Honda Civic with five members of one family: Mr. Mark Gomez, Ms. Abigail Gomaz, and their three children Adrian (age 12), Lux (age 5) and Dustin (age 3). All of the members of the Gomaz family were wearing seat belts and Lux Gomez and Dustin Gomez were in car seats. All of the members of the Gomaz family received serious injuries with Lux Gomaz dying from the force of the impact with complete separation of two of the vertebrae in her spine and severe trauma to her brain.

At 10 PM the Friday before the collision, Mr. Davis-Locke had driven from Newmarket to Toronto, went to a nightclub and consumed alcohol. Around 6 AM on Saturday Mr. Davis Locke drove from Toronto back to his home in Newmarket having had little sleep and still impaired by the alcohol. Based upon a blood analysis, the Centre of Forensic Sciences estimated that Mr. Davis Locke blood-alcohol concentration was between 0.087 and 0.137 at the time of the collision. Immediately before the impact with the first vehicle, Mr. Davis-Locke’s Volvo’s in-vehicle computer recorded a speed of 144 km/h.

Mr. Davis-Locke entered pleas of guilty to the offence of impaired operation causing the death of Lux Gomez, and two counts of impaired operation causing bodily harm to her parents Mr. Mark Gomez and Ms. Abigail Gomez.

In the reasons for judgment, the judge sentenced Mr. Davis-Locke to six years in prison to be followed by ten years of a driving prohibition.

Defendant’s Human Factors Position

Dr. Jack Auflick, Ph.D., a senior consultant for the U.S. based Engineering Systems Inc. (“ESi”), was called by the defence as an expert in the field of Human Factors in Engineering Psychology.

Dr. Auflick opined that Mr. Davis-Locke had a microsleep, a temporary period of unconsciousness lasting seconds, right before the collision causing him to depress the accelerator. Dr. Auflick concluded that the lack of sleep combined with alcohol increased the likelihood of a microsleep. Dr. Auflick wrote in his report: “…It is possible that Mr. Davis-Locke, with his muscular physique, depressed the accelerator as he fell into a microsleep. This may explain the 144 kilometre an hour vehicle speed in the Volvo in the second prior to the 1st recorded event but this cannot be determined with certainty.” When asked how certain he was about an involuntary depression of the accelerator petal during a microsleep, Dr. Auflick testified that the degree of certainty was at least 51 per cent or “more likely than not”.

In addition, Dr. Auflick concluded that “…high levels of hormones created a cognitive tunnel vision and likely an inadvertent full activation of the throttle."

The defence used the opinion of Dr. Auflick as the basis “to reduce the degree of blameworthiness that might otherwise attach to the intentional operation of a motor vehicle on a regional highway at a rate of speed of more than 60 kilometres over the posted speed limit.”

The Crown’s Human Factors Position

The Crown did not provide a human factors position.

The Crown argued that “even if the evidence of Dr. Auflick and the opinions referenced in the ESi supplementary report are accepted in totality, the blameworthiness attached to a Mr. Davis-Locke's decision to operate a motor vehicle in circumstances where he had recently consumed alcohol and had gotten little sleep remain.”

Judge’s Rationale

The judge stated that it “is difficult to accept that the determination relating to the rate of speed are based on a “reasonable degree of engineering and scientific certainty". The fact studies have shown that acceleration can occur following the onset of a brief and unexpected period of microsleep does not form a basis, in my view, for concluding that is what occurred here. This conclusion is determined to be a matter of conjecture rather than science.”

The judge decided that it was equally likely that Mr. Davis-Locke had been driving his vehicle at 144 km/h even before he had fallen asleep. The judge found it difficult to accept Dr. Auflick’s conclusion that the 144 km/h speed occurred after Mr. Davis-Locke had fallen into a microsleep.

The judge noted that Mr. Davis-Locke admitted to driving his vehicle above the posted speed limit. The judge accepted the Crown’s position that “the distinction drawn between the potential for an unintentional period of acceleration following the onset of sleep versus the intentional operation of a motor vehicle at an undefined rate of speed in excess of the posted limit prior to the onset of sleep, is a distinction without a difference in law.”