Appeal Court says judge who acquitted N.S. man in hit-and-run death 'committed errors of law'

The Nova Scotia Court of Appeal has released a written decision that outlines why it overturned a Cape Breton man's acquittal in the hit-and-run death of a 10-year-old girl who was out riding her bicycle.

While a three-judge panel with the Appeal Court ordered a new trial last month on three charges for Colin Hugh Tweedie, it only released its reasons this week.

The written decision said Nova Scotia Supreme Court Justice Mona Lynch "committed errors of law" on the charges for which she acquitted Tweedie — impaired driving causing death, failing to stop at an accident involving death, and dangerous operation of a motor vehicle causing death.

"Because of these errors, the decision to acquit Mr. Tweedie was legally flawed," said the decision.

Tweedie was driving an SUV on Black Rock Road in Victoria County on July 11, 2019, when he struck Talia Forrest at 9:42 p.m. AT.

Tweedie was travelling northward in the southbound lane at the time of the crash. An accident reconstruction expert determined Forrest's bike was dragged under Tweedie's vehicle for 1.15 kilometres.

When he arrived at his nearby home, he told his girlfriend he had hit a deer.

Tweedie later told RCMP his girlfriend was driving the SUV. He pleaded guilty to obstruction of justice for lying about this.

3 issues cited in Crown's appeal

After Tweedie's arrest, two breathalyzer samples were taken. The one relied on by the Crown was taken at 1:51 a.m. on July 12, around four hours after the collision. It showed a blood-alcohol percentage of 0.06.

The Appeal Court decision said Lynch didn't factor in a Criminal Code presumption that would have increased Tweedie's blood-alcohol percentage.

The Crown argued in its appeal that Lynch did not examine whether Tweedie was "wilfully blind" for choosing to "ignore the possibility that he hit anything other than a deer."

The decision said if Lynch considered this, she might have considered factors such as:

• Tweedie's assumption that he hit a deer because he had seen one in the area a few days before.
• Tweedie continued driving after his airbags were deployed, even though he said he couldn't see.
• The collision happened near a spot where a road sign says "Caution – Drive Slow Children Playing."

"The trial judge should have turned her mind to whether the Crown had proven that Mr. Tweedie was wilfully blind," the Appeal Court decision said.

"She needed to consider if the circumstances created a suspicion that he chose to ignore because he did not want to learn the truth. Not doing so was an error of law."

The third issue the Crown cited in its appeal was its allegation Lynch failed to consider the totality of evidence when determining whether Tweedie committed dangerous driving causing death.

The Appeal Court decision said Lynch did not consider some of the more significant evidence concerning lighting and visibility at the time of the crash, which contradicted Tweedie's assertion it was dark.

As well, the decision said Lynch did not consider all of the evidence concerning road conditions.

"In my view, the trial judge's implication that Mr. Tweedie may have collided with Talia on the wrong side of the road because he swerved to avoid a pothole arose because she did not consider all of the evidence," it said.

"It was pure speculation. There is no evidentiary basis to support the inference, particularly where Mr. Tweedie himself said he was not swerving."