Terry Mosher (76) was fully acquitted today of charges of obstruction of justice.
He was charged after hitting a man that was laying across Highway 17B, through Garden River, in the middle of the night on October 13th, 2013.
The charge came when Mosher, who didn’t have a cell phone, left the scene of the accident to call 911 at the Husky Gas Bar and Restaurant.
The man hit was Jessie Roach, and it was fatal.
There was no artificial lighting in the area of the accident.
There was no evidence of excessive braking or evasive driving of the vehicle.
Video surveillance of the Husky showed that Mosher and his wife looked at the front of the vehicle, which he at first denied, which proved that either they knew they hit something or that they were checking that they did not hit anything. The court found both plausible.
Legal Analysis From the Court
“The accused drove his vehicle over the deceased, who was prone on the highway, dragging him for a distance and likely causing the victim’s death. We do not know how or why the victim was in that position. That may be a question best answered in another forum and is not a question that this court can answer. My heart and sympathy goes out to the family of the deceased and the community of Garden River for their loss.
The court’s responsibility in this case is to determine, once it is satisfied that this vehicle was in contact with the accused, whether the Crown has proven the accused’s guilt on the charge of obstruction of justice beyond a reasonable doubt.
In order to succeed in its prosecution of this charge the Crown must prove the criteria as enunciated by Justice Paciocco in R. v. Yussuf,  O.J. No. 1487 (Ont. C.J.).
I have varied Justice Paciocco’s wording somewhat to reflect the circumstances of this case:
- There must be a peace officer who is in the execution of a lawful duty as a peace officer;
- The accused person must know the person is a peace officer and must know the officer is in the execution of his duty;
- The alleged obstructive conduct must be an intentional act by the accused person, or an intentional omission by the accused person constituting a failure by the accused to comply with a legal duty;
- That act or omission must make it more difficult for a peace officer to carry out his/her duties;
- The accused person must intend to make it more difficult for the police to execute their duty.
Counsel for the Crown and defence acknowledge that the first two factors have been proven and I do so find. Counsel for the defence takes issue with the fourth element. I have no difficulty in finding that in the circumstances of this case, had the accused lied to the police about his vehicle’s involvement with the accident and his knowledge of what happened, that such act or omission made it more difficult for the peace officers to carry out their actions. Both Officers Fairburn and Cerasuolo were required to pursue other leads that they would not otherwise have been required to pursue had they known the accused’s vehicle was the one involved in the collision. The threshold for this factor appears to be very low.
In R. v. David,  O.J. No. 3007, (Ont. S.C.), a decision of Justice Trotter, the accused in that case lied to the police about the location of her grandchild who had been the subject of an Amber Alert. Although the police did not believe her statement, they searched her residence. The child was not present in her residence and the police were able to find the child shortly thereafter. Ms. David was found guilty of obstruct. The offender’s behaviour caused the police only minimal and transitory difficulty.
Similarly in Justice D. Paciocco’s case, the learned trial judge found the accused guilty of obstruct. The accused refused to exit his vehicle when the police officer attempted to arrest him and rolled up the window on the officer’s arm. The officer managed to open the door by the handle and the accused did exit the vehicle when subsequently asked to do so. This whole process only took a few seconds and provided brief difficulty for the officers.
The Ontario Court of Appeal held that an accused need not completely frustrate, but only affect the officer in the execution of his/her duty.
However, this factor only comes into play if I am satisfied that the accused intentionally mislead the officers.
The greatest impediment to the establishment of the Crown’s case beyond a reasonable doubt arises with respect to the factors set out above, as described by Justice Paciocco. Has the Crown proven an intentional act or omission of the accused, which constituted a failure by the accused to comply with a legal duty? Secondly, has the accused intended to make it more difficult for the police to execute their duty?
With respect to elements of Justice Paciocco’s analysis, they are very much connected to the wording of s. 129 (a) which requires the behaviour to be a “wilful obstruction”. It was conceded that the accused had an obligation to report if he was i nvolved in an accident under the provisions of 199 of the Highway Traffic Act. Once the accused reported the accident, did he wilfully obstruct the police in the execution of their duty?
I have taken great pains to set out the details of the statements given by the accused. The Crown asks me to use “common sense”. A court must look at all of the evidence and analyze it.
It makes sense that the accused should have felt something when he ran over the victim. However, there was no significant evidence that the accused’s tires actually ran over the body. It is the running over something with one’s tires that produces a bump. It is plausible that the accused did not notice anything when he turned to avoid a collision and the body was caught under his undercarriage. It is plausible that he could have and should have felt something in catching the body in the undercarriage.
It would also make sense that if the accused believed he had struck something that there would have been evidence of sudden braking. There was no evidence of sudden braking at the scene.
All of the evidence found relating to the deceased was found in the eastbound lane and not in the west bound lane. It makes sense that there was therefore no evasive action taken by the accused in avoiding the deceased, or that he underestimated his evasive actions. However, he could have turned into the westbound lane past the area of impact, depending on his reaction time, or simply could have been mistaken as to how far he turned into the westbound lane in an effort to avoid a collision.
There was no evidence as to the speed of the vehicle in the accident reconstruction report. The speed limit was 70 kilometers per hour in the area in question, and if the accused was driving about 70 kilometers per hour the timeframe involved in contact with the deceased would have been something less than two seconds, by my mathematical calculation. This accident occurred when it was dark, with no artificial lighting present, with a seventy-three year old accused driving a vehicle after not having slept for about 17 hours.
The accused admitted that he was shaken up following the incident and Officer Cerasuolo acknowledged the accused’s upset by the length of time the Officer took to take the statement from the accused. The accused admitted that he was shaken in his subsequent statements to the police.
The accused reported the incident, remained at the scene until police and medical help arrived; gave five separate statements voluntarily over approximately six hours; signed two written consents to search his vehicle and gave verbal consents to the continued search and seizure of his vehicle even though that caused some hardship to himself. All of these positive steps, as noted by Justice Wong in Fisher, are inconsistent with an accused intending to wilfully obstruct the police.
The accused never admitted that he intentionally lied to the police in the many hours of being questioned. To the contrary, his actions demonstrated total cooperation. What was the motive for attempting to mislead the police? There was no significant benefit to the accused to deny his involvement in the accident. The accused in his various statements to the police officers admitted some uncertainty as to whether or not he struck the deceased. He provided, as his main explanation for not believing he had struck the deceased the fact that he did not feel a bump. That position is not unreasonable in all the circumstances of this case.
This was a tragic accident. I find, in considering all of the evidence the accused was not intentionally misleading police nor attempting to interfere with an investigation.”