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Transport driver not guilty in crash that killed Blind River OPP officer

'As a judge, I must apply the law to the facts as I find them, no matter how unpleasant or unpopular the result'
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The Sault Ste. Marie Courthouse is pictured in this file photo. Michael Purvis/SooToday
When he acquitted a Thunder Bay transport driver Thursday of criminal charges in connection with a fatal collision that took the life of an off-duty police officer nearly four years ago, Superior Court Justice Edward Gareau indicated to the courtroom he had "agonized" and "struggled" to reach his decision.

"It was not an easy decision to make, and, in some respects, not an easy decision to accept," he said as he found Gary Tyska not guilty of dangerous driving.

Const. David Dennie, an officer with the Blind River detachment of the Ontario Provincial Police, died in the Feb. 13, 2014 collision that occurred on Highway 17, just east of the town.

Gareau said that based on all of the evidence he heard during a nine-day trial in September, he was unable to conclude, with the degree of certainty required in law, that the manner in which Tyska operated his vehicle was dangerous to the public.

There is no reliable evidence that establishes the actus reas (the physical act of the crime) of the offence of dangerous driving beyond a reasonable doubt, he said.

"In my view," there must be evidence of driving by the accused that is a marked departure from the norm to establish the actus reas of dangerous operation of a motor vehicle.

The judge said his decision was not to be taken to minimize or condone what had occurred that morning.

"Mr. Tyska is the only person who knows with certainty what transpired," he stated, noting Tyska had chosen not to testify, which is his right.

"I have my suspicions as to what occurred and how this accident happened but they are only suspicions and cannot be relied on," he said.

"Only Mr. Tyska knows for sure and he must carry that knowledge around with him, for the rest of his life."

On Sept. 5, the first day of the trial, Tyska pleaded not guilty to criminal negligence causing death.

A long-haul driver for ABI Trucking Inc. of Thunder Bay, he drove a subcontracted Purolator run between the Lakehead and the Toronto area.

He was returning from southern Ontario when his tractor trailer collided with Dennie's Jeep at approximately 6:50 a.m.

On the first day of the trial, the court heard an agreed statement of facts that indicated Tyska drove his transport in excess of the commercial driving regulations and used two different driver's daily log books to record his trips.

A few days into the trial, the Crown indicated it would be seeking a conviction on the lesser, included offence of dangerous driving.

Assistant Crown attorney Karen Pritchard told the court prosecutors didn't intend to tender evidence as to how the collision occurred or how Dennie's death related to the accident.

During the trial, Gareau heard testimony from area residents who happened upon the collision scene, OPP officers and investigators, and expert witnesses that included Clayton Marquardt, a human fatigue specialist.

Gareau said the evidence he heard, "at its highest level,"  indicated Tyska drove more hours allowed by regulation, was impaired by fatigue as a result, used two log books to conceal his actions, and did not brake or apply his throttle to reduce his speed immediately before or at the time the collision occurred.

These activities aren't sufficiently tied to Tyska's driving conduct to establish dangerous driving beyond a reasonable doubt, he said in his 30-page decision.

The judge said "there is no reliable evidence" of erratic driving or that he fell asleep.

If Marquardt's evidence is accepted, Tyska was fatigued at the time of the collision.

As well, Gareau pointed out there is no accident reconstruction evidence that establishes how the collision occurred or the connection of fatigue to it.

The facts in the case require accident reconstruction evidence to allow the court to determine the collision's cause, assess the standard of care and determine whether Tyska's driving actions represented a marked departure from what would be expected from a reasonable driver in the circumstances, Gareau said.

"Regretfully," the court didn't have the benefit of the evidence of an OPP reconstructionist who prepared a report "leaving the court with no expert opinion on how the Dennie and Tyska vehicles collided."

Gareau noted that "interestingly, the Ontario Provincial Police did not request an outside police force to do the accident reconstruction in this case," given Dennie was an OPP officer assigned to the Blind River detachment.

As he was completing his reasons, Gareau addressed Karine Dennie, the victim's widow, about the terrible tragedy experienced by her family and the loss of a husband and father they suffered.

"It is difficult for me to remove the images of Mrs. Dennie's face from my mind when the paramedic Derrick Bates testified how he found her husband in the Jeep, upside down and impacted by snow," he said.

"Mrs. Dennie's face was tortured with pain and it is not an image that I will soon forget."

The judge said he hopes that she realizes that he struggled with his decision.

"I did not take my responsibility to her or the administration of justice lightly."

Gareau added that he hopes Mrs. Dennie and her family will find closure, peace and acceptance.

"As a judge, I must apply the law to the facts as I find them, no matter how unpleasant or unpopular the result."

In June, the owner of ABI Trucking, was jailed for criminal offences stemming from the fatality.

Ian Fullerton was sentenced to six months custody after pleading guilty last year to being a party to dangerous driving for failing to ensure his drivers complied with provincial laws and regulations for off-duty drivers and off-duty rest hours by permitting single driver round trips between. Thunder Bay and Toronto.

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About the Author: Linda Richardson

Linda Richardson is a freelance journalist who has been covering Sault Ste. Marie's courts and other local news for more than 45 years.
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