Court of Appeal quashes acquittal in crash that killed couple, paralyzed man

The trial judge erred by tossing evidence in the impaired driving case, toppling the chances of convicting Nicholas Villeneuve, says a panel of judges.

Panel finds trial judge erred by tossing evidence in impaired driving case, toppling chances of conviction

A younger man with cropped brown hair puts his arm in a black puffer jacket.
Nicholas Villeneuve leaves a courtroom in Gander's provincial court after being acquitted in February 2021. (Garrett Barry/CBC)

A Newfoundland and Labrador man who was acquitted in a fiery head-on collision that killed two people and partially paralyzed another has been ordered to stand trial.

In a decision released Tuesday, a panel of judges set aside the acquittals on all eight impaired and dangerous driving-related charges. Nicholas Villeneuve, who walked away a free man in February 2021, will now be retried.

At the heart of the Crown's appeal was whether the RCMP officer at the scene detained Villeneuve before key evidence — including blood samples — were gathered.

Villeneuve, then 20 years old, was driving home from a music festival in Gander when he collided in his pickup truck with a vehicle carrying John and Sandra Lush of Lewisporte. The couple died at the scene, and their daughter Suzanne and her boyfriend Josh Whiteway suffered serious injuries. 

The crash happened on the Trans-Canada Highway outside Gander in the early morning hours of July 9, 2019, during a heavy downpour. Despite the rain, the Lushes' vehicle was engulfed in flames. 

Dozens of people wearing thick winter clothing hold signs demanding justice.
A crowd demonstrates in Lewisporte to call for an appeal of court decisions in the trial of Nicholas Villeneuve. Local MHA Derek Bennett attended the protest. (Derek Bennett/Facebook)

Police brought Villeneuve to hospital where he was treated for serious injuries to his face. The officer read him his caution — twice — but did not include his rights to counsel.

He was charged with two counts each of impaired driving cause death, dangerous driving causing death, impaired driving causing bodily harm and dangerous driving causing bodily harm. 

No evidence, no case

Prior to his trial beginning, the defence filed an application claiming the police violated Villeneuve's rights under the Canadian Charter of Rights and Freedoms, which spells out the right for everyone who is detained by police to consult a lawyer without delay.

Lawyer Rosellen Sullivan argued Villeneuve was, in effect, detained when the officer came into his hospital room and began questioning him. She argued any evidence collected, including statements he made to police, observations made by officers, car and phone records and his blood sample, should be excluded from evidence.

However, Villeneuve did consent to having his blood taken by a nurse for medical and legal purposes. And when an RCMP officer made a demand for a blood sample, Villeneuve reportedly said, "Yeah, go for it."

Judge Mark Linehan said the constable detained the accused the moment the officer began a "focused questioning of him about the accident," thus ruling the evidence as inadmissible.

Justices Frances Knickle, Lois Hoegg and Francis O'Brien disagreed.

A tall grey-haired man in a yellow shirt smiles. He is standing next to a much-shorter woman with cropped dark hair.
John and Sandra Lush were killed when their SUV collided with a pickup truck on the Trans-Canada Highway around 4 a.m. on July 7, 2019. (Families Funeral Home)

The trial judge erred by concluding the officer remained at Villeneuve's bedside and engaged in focused and directed questioning, they wrote. 

"From their arrival at hospital at 4:43 until 5:03 (a span of 20 minutes), the officer asked Mr. Villeneuve one question: 'What happened?' or 'Where were you going?'" wrote the appeal judges.

"One question in 20 minutes does not support that the officer 'continued to question' as found by the trial judge."

The appeal judges noted several erroneous facts in the trial judge's decision including when Villeneuve and the officer arrived at hospital.They found there was no evidence the officer took advantage of Villeneuve's vulnerable position being confined to a hospital bed.

"The trial judge made erroneous factual findings, relied on irrelevant considerations and ignored the relevant consideration that the officer twice cautioned Mr. Villeneuve," the panel wrote.

"This misapprehension caused the trial judge to mischaracterize the encounter between Constable Gillingham and Mr. Villeneuve and wrongly conclude that Mr. Villeneuve was detained at a point when the evidence did not support that there was a detention."

The case will now be moved to provincial court to proceed with trial.

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Ariana Kelland

Investigative reporter

Ariana Kelland is a reporter with the CBC Newfoundland and Labrador bureau in St. John's. She is working as a member of CBC's Atlantic Investigative Unit. Email: