Crash victims feel justice denied, despite evidence accused driver was drunk

·6 min read
Crash victims feel justice denied, despite evidence accused driver was drunk

As one person walked free from the Gander courthouse on Monday, another watched in disgust from his wheelchair.

Josh Whiteway will likely never walk again after he, and his life, collided with Nicholas Villeneuve, the man who police said was driving drunk on July 7, 2019, when he crashed his truck into an oncoming SUV.

Whiteway was paralyzed and badly burned. His girlfriend, Suzanne Lush, escaped with her life, but sustained major injuries. Her parents, John and Sandra Lush, were killed on impact.

In Whiteway's mind, there is no disputing who was responsible. But Villeneuve walked away from two charges of impaired driving causing death because the RCMP did not inform him of his right to speak with a lawyer on the night of the crash.

"It's infuriating. It's a joke," Whiteway told CBC News on Tuesday. "How do you throw out evidence? Facts? It's not like they thought they could smell beer, or they found a beer can in the back seat. This is serious evidence. I just don't know how the judge, or how the accused, or how the lawyer can sleep."

Families Funeral Home
Families Funeral Home

Highway hell

Police showed up at the scene of the crash on the Trans-Canada Highway outside Gander around 4 a.m. to find a vehicle engulfed in flames and firefighters and paramedics already on site.

According to details in an application filed early in the court process, it was chaos — a grotesque entanglement of death and inferno lighting up the pitch-black highway in the midst of a torrential downpour.

Suzanne Lush was in an ambulance heading to hospital when they arrived. She had managed to crawl over her boyfriend to escape the burning car.

As she was climbing over him, Whiteway was realizing his legs didn't work. He watched with terror as the fire began to consume him.

Despite having eight broken ribs, a broken sternum, wrist and foot, Lush found the strength to pull Whiteway out of the vehicle.

WATCH | Josh Whiteway describes how he was infuriated by the acquittal entered in a Gander courtroom on Monday:

He was gone to the hospital by the time the RCMP arrived.

They found Nicholas Villeneuve in the passenger seat of a fire truck, where his injuries were being tended to. His slurred words rolled over a split in his tongue, and he was still wearing an admission bracelet from a bar.

A case unravels

An officer accompanied the 22-year-old in the ambulance to the hospital and spent the night at his bedside, questioning him between visits from doctors and nurses.

They arrived around 4:30 a.m. But the officer didn't read him the standard police caution until 5:03 a.m.

Villeneuve replied he understood.

Twenty minutes later, the officer cautioned Villeneuve for the second time.

"I wish to give you the following warning," he read from a card. "You must clearly understand that anything said to you previously should not influence you or make you feel compelled to say anything at this time. Whatever you felt influenced or compelled to say earlier, you are now not obliged to repeat, nor are you obliged to say anything further, but whatever you do say may be given as evidence."

Villeneuve again replied that he understood, and questioning began.

Villeneuve told the officer he had been drinking. The officer asked him to sign a consent form for blood samples, and he complied.

These aren't opinions. These are facts. And for it to just be thrown away based on his rights being violated is just disgusting. - Josh Whiteway

But at no point did the officer tell him exactly what happened that night — that two people died — nor did he tell Villeneuve he had the right to speak to a lawyer.

That would become the fatal flaw in the investigation. The officer later told the court that it was a mistake, admitting he "didn't put his mind" to Villeneuve's rights.

It was a mistake that dealt a death blow to the prosecutor's chances of getting a conviction.

Whiteway watched the case unravel after the accused, through his lawyer Rosellen Sullivan, filed an application last year claiming the police violated his rights under the Canadian Charter of Rights and Freedoms.

The charter spells out that everyone who is detained by police has the right to consult a lawyer without delay. Sullivan argued that Villeneuve was, in effect, detained when the officer came into his hospital room and began questioning.

Judge Mark Linehan agreed. The bulk of the evidence collected couldn't be used.

"A serious breach of his duty as a peace officer," Linehan wrote. "The public must have confidence that those who are charged with the enforcement of laws do so while keeping their minds on the rights of all citizens."

On Friday, the prosecutor called Whiteway to her office and told him she wouldn't be calling any evidence. The case was called Monday morning, when the judge dismissed the charges.

"We know that he was impaired, severely impaired. We know that he was speeding. We know that his cellphone was active around the time of the accident. These aren't opinions. These are facts. And for it to just be thrown away based on his rights being violated is just disgusting," Whiteway said.

The Crown has 30 days to file an appeal, but Whiteway isn't optimistic it will make any difference.

Josh Whiteway/Facebook
Josh Whiteway/Facebook

The 29-year-old is living at home in Lewisporte, after putting his career as an engineer in Calgary on hold indefinitely. He is a lifelong athlete and hockey player who now faces the reality of paralysis from the waist down due to a break in his spine.

Whiteway posted his feelings on Facebook on Monday afternoon. It was shared more than 6,000 times in 24 hours. People reached out to him to share their experiences losing loved ones in highway crashes and drunk driving incidents.

When Villeneuve was charged, Whiteway had hopes it would be a precedent-setting case. He wanted people to know what can happen when someone drinks and drives.

Instead, he's horrified at the thought it could be used as a precedent for future drunk drivers to escape consequences due to mistakes by police or prosecutors.

He doesn't blame the officer who sat at Villeneuve's bedside that night. He doesn't blame any single person involved in the case.

Instead, he hopes change comes in the justice system, where he feels common sense and evidence of fault don't always equal a criminal conviction.

"If you're a decent citizen here, you can see that this is all wrong," he said. "I just want this to stop here. I don't want anyone else to have to go through this and to come out with the same outcome as we did because it's just disgusting."

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