Original decision in death of girl ‘legally flawed,’ N.S. Court of Appeal says

A Nova Scotia Court of Appeal decision that ordered a new trial for a Nova Scotia man acquitted in the hit-and-run death of a 10-year-old girl has laid out why the three-member panel believes the original decision was “legally flawed.”

Talia Forrest was struck and killed by someone driving a vehicle on the evening of July 11, 2019, while riding her bike on Black Rock Road in Big Bras d’Or. RCMP reported at the time that the driver of the SUV had fled the scene.

The following month, Colin Hugh Tweedie — then 27 — was charged with dangerous operation of a motor vehicle causing death, impaired driving causing death, failing to stop at an accident involving death, and obstruction of justice.

He pleaded guilty to obstruction, admitting he lied to a police officer about who was driving at the time of the collision.

He was ultimately acquitted of the other charges after a trial in Sydney Supreme Court in February 2022, which was heard by Justice Mona Lynch, and later handed a suspended sentence and 18 months probation.

The Crown chose to appeal that acquittal.

In January of this year, a three-member panel heard the appeal and agreed a new trial should be ordered.

In his written decision released Wednesday, Justice Michael J. Wood said the trial judge made errors by not properly considering Tweedie’s blood alcohol content, not considering whether Tweedie was wilfully blind that he had hit a person, and not considering all of the evidence related to the road conditions and victim’s visibility.

“She speculated the driver might have swerved to avoid a pothole when there was no evidentiary basis for this finding. The treatment of the evidence was an error of law that undermined the acquittal,” Wood wrote.

The decision also stated if the original trial judge had considered whether Tweedie was wilfully blind, she might have taken into account various things brought up at trial.

This includes the fact Tweedie said he did not see what he hit but assumed it was a deer because he had seen one in the vicinity “a few days earlier,” the fact that the airbags deployed after the collision and he was unable to see but continued driving, and the fact Talia’s bicycle was dragged under the vehicle for 1.15 kilometres.

Talia’s friend, who had been riding her bike with her at the time of the incident, testified at trial that she saw sparks flying from the bicycle.

As well, the decision pointed out Tweedie travelled along Black Rock Road frequently and that there was a sign that read “Caution – Drive Slow Children Playing.”

‘When he first encountered police Mr. Tweedie lied and denied driving the vehicle,” the decision noted.

“The trial judge should have turned her mind to whether the Crown had proven that Mr. Tweedie was wilfully blind. 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.”

Wood noted the trial judge used the question of lighting at the time of the collision and the girls’ visibility as part of her dangerous driving analysis.

“(…) it was dark enough that people searching for Talia Forrest had to use flashlights and the cars on the road in the video had their headlights and taillights on. It was a country road with minimal ambient streetlights. The bicycles driven by Talia Forrest and her friend did not have headlights. The two girls were not wearing reflective clothing or helmets with reflectors,” the original judge wrote in her decision.

But the appeal decision said the judge didn’t take into consideration the totality of the evidence.

“The trial judge, in her analysis seemed to focus on the use of lights by some people in the search for Talia to the exclusion of other evidence. She did not mention any of the testimony concerning visibility on the road itself. As the evidence of Noelle MacLean indicated, flashlights were used because Talia was not on the road and people were searching in the ditches and tall grass,” Wood wrote.

Talia’s family members have previously spoken out following Tweedie’s acquittal in 2022 and were upset with the decision.

Her obituary described the young girl as the “sweetest” and “brightest,” who “always had a smile on her face.”

by Global News