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MOTOR VEHICLEREPORTS

Sixth Series/Sixieme serieRecueil de jurisprudence en droit

des vehicules a moteur

VOLUME 99(Cited 99 M.V.R. (6th))

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MOTOR VEHICLEREPORTS

Sixth Series/Sixieme serieRecueil de jurisprudence en droit

des vehicules a moteur

[Indexed as: R. v. Siddiqui]

Her Majesty the Queen, Respondent and Muhammad Siddiqui,Appellant

Ontario Court of Appeal

Docket: CA C60692

2016 ONCA 376

Gloria Epstein, S.E. Pepall, K.M. van Rensburg JJ.A.

Heard: May 13, 2016

Judgment: May 13, 2016

Written reasons: May 18, 2016

Criminal law –––– Offences — Dangerous driving causing bodily harm —Miscellaneous –––– Appeal — Accused drove vehicle with three passengers andgot into race with another vehicle — Accused’s vehicle spun out of control andcrashed — S, who was front seat passenger in accused’s car, was ejected fromcar and suffered serious injuries — Just prior to accident S asked accused twiceto slow down but accused refused to comply — Accused was charged with threecounts of dangerous driving causing bodily harm — Accused was convicted ofdangerous driving related to S but was acquitted regarding other two passen-gers — Accused appealed conviction — Appeal dismissed — There was suffi-cient evidence to prove that accused’s driving was cause of S’ injuries — Eventhough other driver was acquitted of dangerous driving, verdicts were not incon-sistent — Case against accused was stronger because only accused was beingrepeatedly informed of dangerousness of driving.

Criminal law –––– Offences — Dangerous driving causing bodily harm —Sentencing — Adult offenders –––– Appeal — Accused drove vehicle withthree passengers and got into race with another vehicle — Accused’s vehiclespun out of control and crashed — S, who was front seat passenger in accused’scar, was ejected from car and suffered serious injuries — Just prior to accident Sasked accused twice to slow down but accused refused to comply — Accusedwas charged with three counts of dangerous driving causing bodily harm — Ac-

MOTOR VEHICLE REPORTS 99 M.V.R. (6th)2

cused was convicted of dangerous driving related to S but was acquitted regard-ing other two passengers — Accused was sentenced to five months in jail andwas subject to five-year driving suspension — Accused appealed sentence —Appeal dismissed — Trial judge expressly addressed accused’s request for inter-mittent sentence and did not err in concluding that custodial sentence was neces-sary — Even though accused was youthful first offender, sentence was fit.

Cases considered:

R. v. Pittiman (2006), 2006 SCC 9, 2006 CarswellOnt 1695, 2006 CarswellOnt1696, 36 C.R. (6th) 87, 206 C.C.C. (3d) 6, 264 D.L.R. (4th) 1, [2006] S.C.J.No. 9, 346 N.R. 65, 209 O.A.C. 388, [2006] 1 S.C.R. 381 (S.C.C.) —considered

R. v. Roy (2012), 2012 SCC 26, 2012 CarswellBC 1573, 2012 CarswellBC1574, [2012] S.C.J. No. 26, 345 D.L.R. (4th) 193, 281 C.C.C. (3d) 433, 28M.V.R. (6th) 1, 93 C.R. (6th) 1, 430 N.R. 201, [2012] 2 S.C.R. 60, 321B.C.A.C. 112, 547 W.A.C. 112, 259 C.R.R. (2d) 361 (S.C.C.) — considered

APPEAL by accused from conviction and sentence on charge of dangerous driv-ing causing bodily harm.

Richard Litkowski, for AppellantNadia Thomas, for Respondent

Per curiam (orally):

1 Early in the morning of March 3, 2013, the appellant was driving hisHonda with three passengers, along the Queen Elizabeth Way (QEW).Ali Shahid, the passenger in the front seat, noticed a Nissan, driven byAhmed Manzoor, beside them. Both cars increased their speed. The carschanged lanes several times. The Honda spun out of control and crashed.Mr. Shahid was ejected from the car and suffered serious injuries.

2 The appellant was charged with three counts of dangerous drivingcausing bodily harm. Mr. Manzoor was charged with dangerous driving.

3 The trial judge, citing R. v. Roy, [2012] 2 S.C.R. 60 (S.C.C.), cor-rectly noted that to establish the offence of dangerous driving, the Crownhad to prove that the appellant was driving in a manner that amounted toa marked departure from the standard of care that a reasonable personwould observe in the particular situation.

4 With respect to Mr. Manzoor, the trial judge found that the actus reuswas established, but not the mens rea. The trial judge had no doubt thatMr. Manzoor’s driving was negligent but was left with a reasonable

R. v. Siddiqui Per curiam 3

doubt that it was a marked departure from the standard of care. The trialjudge acquitted Mr. Manzoor.

5 The trial judge found the evidence to be much stronger as it pertainedto the appellant. Mr. Shahid testified that just prior to the accident theappellant was driving around 170-180 km/h. He asked the appellant toslow down, but the appellant did not. Mr. Shahid testified that onceagain, he asked the appellant to slow down. Once again, the appellant didnot heed Mr. Shahid’s warning. On this evidence, the trial judge foundthat at the time of the accident, the appellant was driving at a very highspeed, refused to slow down when twice asked to do so and was tailgat-ing the Nissan.

6 The trial judge found the appellant guilty of the charge relating to Mr.Shahid and acquitted him of the charges in relation to the other two pas-sengers. The trial judge imposed a sentence of five months in jail and afive year driving suspension.

7 The appellant appeals both conviction and sentence.8 Concerning the conviction appeal, the appellant submits that the trial

judge misapprehended the evidence relating to causation. The appellantcontends that even if the evidence supported a finding that the appellantwas driving in a manner that represented a marked departure, there wasinsufficient evidence to support the conclusion that such driving was thecause of Mr. Shahid’s injuries. Specifically, while there was evidencethat the appellant was speeding and made a lane change before the acci-dent, there was no evidence of the manner of driving at the time of theaccident. Furthermore, argues the appellant, the evidence that the Crownrelied on as to the appellant’s driving at the time of the accident wasunreliable.

9 We do not agree with this submission.10 The trial judge made specific factual findings available to her on the

evidence. Based on Mr. Shahid’s testimony, the appellant was speedingjust prior to the accident and, significantly, he ignored repeated warningsto slow down. The trial judge explained why she accepted this evidence,Further, the trial judge accepted the evidence of a witness, Karen John-son, who saw the two cars pass her a minute or so before the accident ata speed Ms. Johnson estimated to be approximately 150 km/h. The trialjudge was not required to address each and every inconsistency in theevidence relevant to this issue.


11 The appellant also submits that in convicting him and acquitting Mr.Manzoor, the trial judge arrived at inconsistent verdicts. Based on thetrial judge’s findings, Mr. Manzoor’s driving was the same as that of theappellant.

12 Again, we cannot accept this argument.13 For a verdict to be inconsistent there must be no realistic view of the

evidence or any rational logical basis upon which the verdicts may bereconciled. R. v. Pittiman, [2006] 1 S.C.R. 381 (S.C.C.).

14 The trial judge pointed to two key pieces of evidence that she feltmade the case against the appellant stronger than that against Mr.Manzoor - Mr. Shahid’s evidence about the appellant’s speed and hisignored warnings about the speed. This evidence provided insight, notonly as to the appellant’s driving, but also as to his state of mind at thetime of the accident — that he had repeatedly been made aware of thedangerousness of his manner of driving, and repeatedly chose to ignorethe warnings. Such evidence was not available in the case of Mr.Manzoor.

15 Based on the evidence that was available in relation to the appellant’sdriving and state of mind, that was not available in relation to Mr.Manzoor, the high threshold for establishing an inconsistent verdict hasnot been met in this case.

16 Concerning the sentence appeal, the appellant argues that having de-termined that a custodial sentence was required, the trial judge erred inprinciple in failing to thoroughly consider the appellant’s request for anintermittent sentence.

17 We disagree. The trial judge expressly addressed the appellant’s re-quest for an intermittent sentence and was of the view that a five monthcustodial sentence was necessary.

18 We find no reason to interfere with the sentence imposed by the trialjudge. The trial judge clearly showed she was mindful of the principle ofrestraint, particularly in the light of appellant’s status as a youthful firstoffender. The five month sentence imposed was fit in all of the circum-stances of this offence and this offender.

19 The appeal as to conviction is therefore dismissed. Leave to appealsentence is granted. The sentence appeal is dismissed.

Appeal dismissed.

Vandendorpel v. Evoy 5

[Indexed as: Vandendorpel v. Evoy]

Michael Paul Vandendorpel, Appellant (Plaintiff) and BeverlyCamillis Evoy and Sheila Louise Evoy, Respondents

(Defendants)

British Columbia Court of Appeal

Docket: Victoria CA42611

2016 BCCA 270

Newbury, Frankel, Savage JJ.A.

Heard: June 14, 2016

Judgment: June 15, 2016

Torts –––– Negligence — Miscellaneous –––– Plaintiff pedestrian walkedthrough controlled crosswalk when pedestrian control signal prohibited crossing,and was then struck by defendant driver’s vehicle, which had been unable tostop at yellow light — Trial judge dismissed pedestrian’s action for damages —Judge held that driver was not negligent and that pedestrian was solely responsi-ble for collision — Judge held that pedestrian contravened Motor Vehicle Actand was in breach of common law duty of care, when he did not wait for pedes-trian control signal to change to allow for him to walk — Judge held that pedes-trian ought to have noticed driver’s vehicle well before he did and failed to takeappropriate precautions once he noticed driver’s vehicle as he then ran acrossrest of road — Judge held that despite being in intersection at yellow light,driver did not breach Act when he proceeded through intersection because hecould not have stopped safely — Pedestrian appealed — Appeal allowed inpart — Matter was remitted to judge to reconsider issues of breach of duty andcausation — Relevant provisions of Act were analyzed in respect of pedestrian,but not driver — Judge did not analyze whether driver was speeding, and driv-ing at excessive speed relative to conditions and in coming to yellow light —Judge failed to consider expert evidence regarding driver’s stopping distancehad he travelled at speed limit — It was necessary for judge to undertake analy-sis of applicable statutory provisions and common law duties, and relate those tofacts found, in analyzing driver’s duty of care.

Motor vehicles –––– Offences and penalties — Offences — Pedestrian of-fences –––– Plaintiff pedestrian walked through controlled crosswalk when pe-destrian control signal prohibited crossing, and was then struck by defendantdriver’s vehicle, which had been unable to stop at yellow light — Trial judgedismissed pedestrian’s action for damages — Judge held that pedestrian failed toestablish that driver was negligent and found that pedestrian was solely respon-sible for collision — Judge held that pedestrian contravened ss. 125 and 132 of


Motor Vehicle Act when he began crossing road despite pedestrian control sig-nal prohibiting crossing — Pedestrian appealed — Appeal allowed in part —Matter was remitted to judge to reconsider issues of breach of duty and causa-tion — Relevant provisions of Act were analyzed in respect of pedestrian, butnot driver — Judge did not analyze whether driver was speeding, and driving atexcessive speed relative to conditions and in coming to yellow light, contrary toss. 146, 144(1), 131(5)(a), 128, and 121 of Act — It was necessary for judge toundertake analysis of applicable statutory provisions, and relate those to factsfound, in analyzing driver’s duty of care.

Cases considered by Savage J.A.:

Housen v. Nikolaisen (2002), 2002 SCC 33, 2002 CarswellSask 178, 2002 Car-swellSask 179, [2002] S.C.J. No. 31, 286 N.R. 1, 10 C.C.L.T. (3d) 157, 211D.L.R. (4th) 577, [2002] 7 W.W.R. 1, 219 Sask. R. 1, 272 W.A.C. 1, 30M.P.L.R. (3d) 1, [2002] 2 S.C.R. 235, REJB 2002-29758, 2002 CSC 33(S.C.C.) — followed

Statutes considered:

Motor Vehicle Act, R.S.B.C. 1996, c. 318Generally — referred tos. 121 — considereds. 125 — considereds. 128 — considereds. 131(5) — considereds. 131(5)(a) — considereds. 132 — considereds. 144 — considereds. 144(1) — considereds. 146 — considereds. 181 — considered

APPEAL by plaintiff pedestrian from judgment reported at Vandendorpel v.Evoy (2015), 2015 BCSC 176, 2015 CarswellBC 292 (B.C. S.C.), dismissing hisaction for damages arising from motor vehicle accident.

R. Sahota, S. Sidhu, for AppellantS. Finn, for Respondents

Savage J.A. (orally):

1 Michael Vandendorpel appeals from the order of the trial judge pro-nounced February 10, 2015 in which he dismissed Mr. Vandendorpel’s

Vandendorpel v. Evoy Savage J.A. 7

action against Mr. Beverly Evoy and Ms. Sheila Evoy for damages aris-ing from a motor vehicle / pedestrian accident.

2 In the early morning of October 9, 2010, Mr. Vandendorpel waswalking to work in Colwood, British Columbia. He was dressed in darkclothing, including a dark hooded pullover that was zipped up. He wasalso wearing headphones and listening to music. It was dark outside andthe roadways were wet as it had rained overnight. Mr. Vandendorpel wasrunning late.

3 The accident occurred at the “T” intersection created by the termina-tion of Mount View Avenue at Sooke Road (the “Intersection”). The In-tersection has two marked crosswalks that traverse Sooke Road (one tothe north of the Intersection and one to the south of the Intersection).

4 There are traffic control signals visible to northbound and southboundtraffic travelling Sooke Road that normally flash green. There are alsopedestrian traffic control signals that normally display the outline of araised hand prohibiting pedestrians from crossing Sooke Road (the “do-not-cross sign”). Sooke Road consists of five lanes at the Intersection:

1. Two northbound lanes (“Lane One” being the curb lane and “LaneTwo” being the center lane);

2. A third northbound lane for traffic turning west onto Mount ViewAvenue (“Lane Three”); and

3. Two southbound lanes (“Lane Four” being the centre lane and“Lane Five” being the curb lane).

5 Mr. Vandendorpel came to a complete stop at the eastern end of theIntersection’s southern pedestrian crosswalk on Sooke Road and acti-vated the pedestrian control device. Activating the pedestrian control de-vice causes the following to occur:

1. The flashing green traffic control signals change to a solid greenlight for 5 seconds;

2. The solid green light then changes to a solid yellow light for 3.5seconds;

3. The yellow light then changes to a solid red light, which remainslit for 29 seconds;

4. Two seconds after the yellow light changes to a solid red, the pe-destrian traffic control signal changes from an outline of a raisedhand to an outline of a person walking and remains that way for 7seconds;


5. The pedestrian traffic control signal then changes back to the out-line of a raised hand, which flashes for 17 seconds. The raisedhand then ceases flashing;

6. Three seconds after the pedestrian traffic control signal ceasesflashing and returns to the solid outline of a raised hand, the trafficcontrol signals return to flashing green for vehicular traffic onSooke Road.

6 Accordingly, once Mr. Vandendorpel activated the pedestrian controldevice, the pedestrian traffic control signal continued to display the do-not-cross sign for at least another 10.5 seconds; however, Mr.Vandendorpel waited only approximately 1.5 seconds before crossing.The trial judge found that from the time Mr. Vandendorpel begun cross-ing until the time of the accident, the pedestrian traffic control signalcontinued to exhibit the ‘do-not-cross’ sign.

7 With respect to the actions of Mr. Vandendorpel and Mr. Evoy, thetrial judge made the following findings:

1. When Mr. Vandendorpel activated the pedestrian control device(10 seconds prior to the accident), Mr. Evoy’s vehicle was approx-imately 153 metres from the point of collision;

2. When Mr. Vandendorpel first stepped off the curb into the cross-walk (1.5 seconds later), Mr. Evoy was 130 metres from the pointof collision; and

3. When Mr. Vandendorpel first saw Mr. Evoy’s vehicle, it was ap-proximately 30 metres from the point of collision.

8 Mr. Evoy was travelling southbound on Sooke Road, driving homeafter finishing his 12-hour work shift as a paramedic. His vehicle wastravelling at approximately 55 kph despite the 50 kph speed limit.

9 The judge made the following findings with respect to Mr. Evoy’stravel:

1. When the traffic control signal first indicated solid green, Mr.Evoy’s vehicle was 128 metres from the stop line;

2. When the traffic control signal first indicated yellow, Mr. Evoy’svehicle was 51.5 metres from the northern stop line;

3. When Mr. Evoy’s vehicle entered the Intersection the traffic con-trol signal was still yellow; and


4. At the time of collision, the traffic control signal had been red for1.5 seconds.

10 At the time Mr. Vandendorpel first noticed Mr. Evoy, Mr.Vandendorpel had already crossed Lanes One and Two and was in LaneThree (the centre-most northbound lane). Mr. Evoy was approximately30 metres away from him, still driving in Lane Four (the centre-mostsouthbound lane). After noticing Mr. Evoy’s vehicle approaching, Mr.Vandendorpel began sprinting across Sooke Road, in front of Mr. Evoy’spath, rather than remaining safely where he was or retreating slightly.

11 Mr. Evoy did not see Mr. Vandendorpel until a fraction of a secondbefore the accident, at which point he slammed on his brakes. Beforereaching the sidewalk Mr. Vandendorpel’s right foot was struck by thefront passenger side of Mr. Evoy’s vehicle, causing him to spin and fallonto the roadway.

12 After a review of the evidence and an assessment of the credibility ofthe witnesses, the judge found Mr. Vandendorpel breached his obliga-tions under the Motor Vehicle Act, R.S.B.C. 1996, c. 318 [Act], and atcommon law:

[52] In my opinion, Mr. Vandendorpel contravened ss. 125 and 132of the Act when he began crossing Sooke Road despite the pedestriancontrol signal indicating a raised hand. As such, I find he breachedhis duty to comply with the provisions of the Act. In my opinion, thisbreach of his statutory duties is also persuasive evidence that he wasin breach of his common law duty to exercise due care. Mr.Vandendorpel’s duty to exercise due care was heightened because hisviolation of the provisions of the Act created a situation that exposedhim to greater danger and he should have assumed that his unex-pected position in the roadway would surprise an approaching vehi-cle: Hadden v. Lynch, 2008 BCSC 295, at para. 59.

[53] In my respectful opinion, Mr. Vandendorpel failed to exercisethe level of care expected of him in the circumstances. I note that thetiming for the traffic control signal is obviously not arbitrary, and ifMr. Vandendorpel had waited until the outline of a walking personwas displayed on the pedestrian control signal (a wait of at least 10.5seconds), Mr. Evoy’s vehicle would have cleared the Intersectionbefore he entered the crosswalk. Furthermore, if Mr. Vandendorpelhad waited for a change in the pedestrian control signal, then a fur-ther 10 seconds would have elapsed before he reached the positionwhere he was struck. At that point in time Mr. Evoy’s vehicle wouldhave been 150 metres past the point of collision.


[54] Mr. Vandendorpel also had a duty to keep a proper lookout. Hesays that he did not see Mr. Evoy’s vehicle until it was approxi-mately 30 metres away from him and he had been in the crosswalkfor more than 6 seconds. I find that Mr. Vandendorpel had the oppor-tunity and ought to have noticed Mr. Evoy’s vehicle well before hedid. Sooke Road proceeding south towards its intersection withMount View Avenue is reasonably flat and straight. Mr. Evoy’s vehi-cle had its headlights on and in my view it was clearly there to beseen. Mr. Vandendorpel wanted to get to work 5 minutes early. Heonly had a couple of minutes left to do that. I find he proceeded intothe crosswalk intent on getting across Sooke Road quickly and indoing so he failed to keep a proper lookout.

[55] Mr. Vandendorpel was also subject to a duty to take precautionswhen there was an apparent hazard. I am satisfied that Mr. Evoy’svehicle constituted an apparent hazard to Mr. Vandendorpel. How-ever, once he noticed the vehicle he did not stop or retreat but ratherchose to sprint across its path. There was no other traffic in the vicin-ity and Mr. Vandendorpel could have remained where he was (inLane Three) or retreated somewhat to ensure Mr. Evoy’s vehiclepassed through the Intersection without striking him. In my opinion,running across the path of an oncoming vehicle, given the weather,road and lighting conditions at the time and the clothing he waswearing, was not only an unreasonable choice for Mr. Vandendorpelto make, it was a reckless one. As a result, I find he failed to takeappropriate precautions once he noticed Mr. Evoy’s vehicle.

13 The trial judge held, to establish liability, Mr. Vandendorpel had toprove on the balance of probabilities that Mr. Evoy should have beenaware of Mr. Vandendorpel’s illegal presence on the road at a time thatallowed him, through the exercise of reasonable care, to avoid theaccident.

14 The judge found that Mr. Evoy did not contravene his duties underthe Act or at common law. With respect to entering the Intersectionagainst a yellow light, the judge held:

[59] In my view, Mr. Evoy’s vehicle was legally in the Intersection atthe time of the accident. Under s. 128 of the Act, Mr. Evoy was re-quired to stop “unless the stop [could not] be made in safety.” As Ihave already noted, I find that Mr. Evoy was 51.5 metres from thenorthern stop line when the yellow light was first exhibited. This dis-tance is less than the average distance referred to in the Mea ForensicReport (62 metres) which assumed both a quicker rate of decelerationand a shorter perception-response time than the Forensic DynamicsReport. In consideration of the specific circumstances of this case,


particularly that the roads were wet and the lighting was poor, I con-clude that Mr. Evoy could not have stopped in safety and thereforehe did not breach s. 128 of the Act when he proceeded through theIntersection.

15 The judge next considered whether Mr. Evoy breached his duty totake care. He held, generally speaking, that the duty is satisfied if a driveris in compliance with the provisions of the Act, but the duty can beheightened if there is a reason for the driver to take “particular caution.”The judge considered whether the traffic control signal’s change fromflashing green to solid green required Mr. Evoy to take additional pre-caution. After considering common law and the relevant provisions ofthe Act, the judge found the possibility of someone being unlawfully inthe middle of the crosswalk was not a reasonably apparent danger to Mr.Evoy:

[64] The change in the traffic control signal may well mean that apedestrian is in the area; however that area is the sidewalk or curbwhere the pedestrian control device is located and not on the roaditself. A driver who sees the traffic control signal change from flash-ing green to solid green is entitled to believe that the pedestrian willobey the rules of the road and will wait for the signals to change toallow for a safe crossing of the roadway. In my view it is reasonablefor a driver to assume that if a pedestrian is responsible enough topress the button on a traffic control device that same person will beresponsible enough to not begin crossing the road until the pedestriantraffic control signal indicates that they may do so. In reaching thisconclusion I have considered the opinions expressed by our Court ofAppeal in Coulter (Guardian ad litem) v. Leduc, 2005 BCCA 199,where Justices Braidwood and Mackenzie observed that in order forthere to be a requirement for particular caution, the possibility ofdanger emerging must be reasonably apparent to the driver. Thecourt explained at para. 37 that the intersection in issue in that casedid not require particular caution even though it was “partiality lit,with snow piled on its sides, and frequented by large trucks.” Ac-cording to the court, these facts alone did not make the intersectionan exceptional occurrence on the Trans-Canada Highway in the win-ter. Moreover, the court found that the prospect of another party dis-regarding the law did not create a duty of particular caution (para.37). The court noted that a driver is entitled to proceed with reasona-ble caution assuming that other users of the road will obey the lawand yield the right-of-way.

[65] In my opinion, no special duty is imposed on Mr. Evoy unlesshe perceived the danger and had the opportunity to avoid the acci-


dent. In the circumstances of the present case, I find the possibility ofsomeone being unlawfully in the middle of the crosswalk was not areasonably apparent danger to Mr. Evoy.

16 The judge also found that Mr. Evoy met his duty to keep a properlookout and to take precautions to avoid a collision once he becameaware of Mr. Vandendorpel’s presence.

17 On appeal, Mr. Vandendorpel states he takes no issue with thejudge’s findings of fact, but submits the judge erred in law by failing tofind Mr. Evoy partially at fault for the accident. In particular, Mr.Vandendorpel says the judge erred in failing to take into account the fol-lowing provisions of the Act with respect whether Mr. Evoy breached hisstandard of care:

1. s. 146 - Driving in excess of 50 kph;

2. s. 144 - Driving at an excessive speed relative to road, traffic, visi-bility or weather conditions;

3. s. 128 - Failing to stop before entering an intersection before ayellow light;

4. s. 131(5) - Approaching an intersection where flashing green lightwas exhibited in such a manner that he was unable to cause hisvehicle to stop before reaching the signal or crosswalk;

5. s. 125 - Failing to obey instructions of applicable traffic controldevices; and

6. s. 181 - Failing to exercise due care to avoid Mr. Vandendorpel.18 Mr. Vandendorpel says that the trial judge, while analyzing the provi-

sions of the Act in relation to Mr. Vandendorpel’s conduct failed to makea similar analysis of the conduct of Mr. Evoy. For example, based on thetrial judge’s findings of fact, Mr. Evoy was in breach of s. 146 of the Act.He was speeding, albeit doing approximately 55 kph in a 50 kph zone.While this may be considered to be a minor difference there are severalmatters that make it more significant than it might otherwise be. For ex-ample, Mr. Vandendorpel argues that, based on the trial judge’s findingsreferenced in paragraphs 46 and 47 of his reasons, had Mr. Evoy beentravelling the speed limit, or lower as he says was appropriate in the cir-cumstances, Mr. Evoy would have had time to either stop safely, or, atthat speed, he would have proceeded through a red light.

19 The trial judge held that Mr. Evoy’s duty of care was informed by theprovisions of the Act and the common law; however, in his analysis ofMr. Evoy’s duty of care, the trial judge does not refer to s.146 of the Act


(which required Mr. Evoy to travel not higher than 50 kph), nor s. 144(1)of the Act (which required Mr. Evoy not to travel “at a speed that isexcessive relative to the road, traffic, visibility or weather conditions”).The same point is made with respect to s. 131(5)(a) (vehicle approachingintersection), s. 128 (vehicle approaching yellow light at a controlled in-tersection), and s. 121 (vehicle approaching traffic controls) of the Act.The trial judge failed to consider the expert evidence regarding Mr.Evoy’s stopping distance had he travelled at 50 kph.

20 Mr. Vandendorpel contrasts the analysis done of Mr. Evoy’s duty ofcare with the analysis done of his own, where the Act’s provisions appli-cable to his conduct, s. 125 (obey traffic control device) and s. 132 (pe-destrian traffic control signals), were referenced and analyzed in the dis-cussion of his duty of care.

21 In this case the matter turns on, inter alia, the application of legalstandards to a set of facts. Those standards include the provisions of theAct and the common law standards owed by drivers and pedestrians toeach other. In general, the application of a legal standard to a set of factsis a question of mixed fact and law. In this case, however, the relevantprovisions of the Act were analyzed in respect of the actions of one party,the pedestrian, but not the other, the driver.

22 In respect of a situation such as this, the Supreme Court of Canadasaid in Housen v. Nikolaisen, 2002 SCC 33 (S.C.C.):

27 Once it has been determined that a matter being reviewed in-volves the application of a legal standard to a set of facts, and is thusa question of mixed fact and law, then the appropriate standard ofreview must be determined and applied. Given the different standardsof review applicable to questions of law and questions of fact, it isoften difficult to determine what the applicable standard of review is.In Southam, supra, at para. 39, this Court illustrated how an error ona question of mixed fact and law can amount to a pure error of lawsubject to the correctness standard:

... if a decision-maker says that the correct test requireshim or her to consider A, B, C, and D, but in fact thedecision-maker considers only A, B, and C, then the out-come is as if he or she had applied a law that requiredconsideration of only A, B, and C. If the correct test re-quires him or her to consider D as well, then the decision-maker has in effect applied the wrong law, and so hasmade an error of law.


Therefore, what appears to be a question of mixed fact and law, uponfurther reflection, can actually be an error of pure law.

[Emphasis added.]

23 While the Court in Housen v. Nikolaisen also referred to the trialjudge’s findings of negligence requiring deference (paras. 29-30), I donot interpret that as a qualification on the principle that failing to con-sider a matter that requires consideration is an error of law. Nor is this acase, in my view, where it could be inferred that, implicit in the reasonsis consideration of the statutory provisions which were not analyzed inrelation to the defendant’s conduct but were analyzed in respect of theplaintiff’s conduct.

24 In the circumstances, in my view, it was necessary for the trial judgeto undertake an analysis of the applicable statutory provisions, and relatethose to the facts found. I do not mean by that to suggest that there is anyparticular outcome to the analysis which must be undertaken, but onlythat, in analyzing the defendant’s duty of care, these statutory provisionsshould have been considered and reviewed. Nor do I suggest that theonly matters that are germane are the statutory provisions. Clearly theduties imposed by the common law include a duty to exercise due care,to keep a proper lookout, and to take precautions when there is an appar-ent hazard.

25 As noted by Mr. Finn, the trial judge did not go on to determine thequestion of causation because he found that Mr. Evoy met the duty ofcare. For a finding of liability against Mr. Evoy it was necessary to findboth a breach of the duty owed to Mr. Vandendorpel and that the breachwas a cause of the injury.

26 In the result, I would allow the appeal and remit the matter to the trialjudge to reconsider these matters.

27 NEWBURY J.A.: I agree.

28 FRANKEL J.A.: I agree.

29 NEWBURY J.A.: The appeal is allowed to the extent indicated.

Appeal allowed in part.

R. v. Kvale 15

[Indexed as: R. v. Kvale]

GARY LYNN KVALE and HER MAJESTY THE QUEEN

Saskatchewan Court of Queen’s Bench

Docket: Moose Jaw CR 26/15

2016 SKQB 208

L.M. Schwann J.

Judgment: June 16, 2016

Criminal law –––– Charter of Rights and Freedoms — Arrest or detention[s. 10] — Right to counsel [s. 10(b)] — Miscellaneous –––– Police officerstopped accused as part of stop check program, smelled beverage alcohol, andnoted that his eyes were glossy — Accused failed roadside screening test, wasarrested, and was informed of his right to counsel and availability of legal aid —He declined to call lawyer but said he needed to go to bathroom — Accused wastransported to police station, where he was allowed to go to bathroom and thenprovided breath samples that showed he was over legal limit — Trial judge heldthat accused’s rights under ss. 10(a) and 10(b) of Canadian Charter of Rightsand Freedoms were not infringed and admitted certificate of analysis — Ac-cused was convicted of driving with excessive alcohol and appealed on basisthat his right to counsel under s. 10(b) of Charter was breached — Appeal dis-missed — Trial judge did not err in law in finding that accused’s right to counselunder s. 10(b) of Charter was not breached — Officer clearly gave accused hisright to counsel, explained what that meant, and offered to provide list of law-yers — Accused did not indicate that he was under impression he had to choosebetween bathroom or exercising his right to counsel, or that he was so overcomeby need to urinate that he could not focus his mind on right to counsel — Ac-cused gave no indication that he did not understand process, and at no time indi-cated any interest in calling lawyer — Trial judge’s findings that accused clearlydeclined to take steps to engage his right to counsel were supported by evi-dence — There was no evidence that accused was denied right to counsel or thathe took steps to invoke his Charter rights — While accused had pressing need tourinate, there was no evidence that his attention or ability to understand was inany way compromised — Evidence was reasonably capable of supporting trialjudge’s conclusion.

Criminal law –––– Charter of Rights and Freedoms — Life, liberty and se-curity of person [s. 7] — Principles of fundamental justice — Proceduralfairness –––– Police officer stopped accused as part of stop check program,smelled beverage alcohol, and noted that his eyes were glossy — Accused failedroadside screening test, was arrested, and was transported to police station


where he provided breath samples that showed he was over legal limit — Ac-cused applied for disclosure of documents designating F as qualified technicianfor Intox EC/IR II, certifiying F to operate that device, and F’s annual profi-ciency testing — Trial judge dismissed accused’s disclosure application — Ac-cused appealed conviction on basis that trial judge erred in not ordering disclo-sure of documents, thereby depriving him of fair trial in violation of his rightsunder s. 7 of Canadian Charter of Rights and Freedoms — Appeal dismissed —Trial judge has right to control trial process and did not err in law in dismissingdisclosure application on procedural grounds — Analysis of accused’s breathsamples had already been admitted into evidence in trial proper before disclo-sure request was made — Trial judge understood defence counsel’s agreementthat certificate of analysis would be admitted for truth of its contents — Under s.258(1)(e) of Criminal Code, certificate of analyst stating that he has analyzedbreath sample and stating result of analysis is evidence of facts alleged in certifi-cate without proof of signature of person — If defence counsel intended to chal-lenge F on his certification, training and qualifications, counsel was required bys. 258(6) of Code to provide notice of his intention to do so, but did not do so —It was not obvious that documents sought were aimed at challenging presump-tion of accuracy and identity as contended on appeal — Trial judge’s reasons aswhole readily disclosed why she dismissed application — Documents soughtwere unrelated to issue of whether Intox EC/IR II was malfunctioning at rele-vant time — Designation of device as “approved instrument” and of F as “quali-fied technician” were both presumptively established by certificate of analysis.

Criminal law –––– Pre-trial procedure — Disclosure of evidence — Disclo-sure — Compelling production –––– Police officer stopped accused as part ofstop check program, smelled beverage alcohol, and noted that his eyes wereglossy — Accused failed roadside screening test, was arrested, and was trans-ported to police station where he provided breath samples that showed he wasover legal limit — Accused applied for disclosure of documents designating F asqualified technician for Intox EC/IR II, certifiying F to operate that device, andF’s annual proficiency testing — Trial judge dismissed accused’s disclosure ap-plication — Accused appealed conviction on basis that trial judge erred in notordering disclosure of documents, thereby depriving him of fair trial in violationof his rights under s. 7 of Canadian Charter of Rights and Freedoms — Appealdismissed — Trial judge has right to control trial process and did not err in lawin dismissing disclosure application on procedural grounds — Analysis of ac-cused’s breath samples had already been admitted into evidence in trial properbefore disclosure request was made — Trial judge understood defence counsel’sagreement that certificate of analysis would be admitted for truth of its con-tents — Under s. 258(1)(e) of Criminal Code, certificate of analyst stating thathe has analyzed breath sample and stating result of analysis is evidence of factsalleged in certificate without proof of signature of person — If defence counselintended to challenge F on his certification, training and qualifications, counsel

R. v. Kvale 17

was required by s. 258(6) of Code to provide notice of his intention to do so, butdid not do so — It was not obvious that documents sought were aimed at chal-lenging presumption of accuracy and identity as contended on appeal — Trialjudge’s reasons as whole readily disclosed why she dismissed application —Documents sought were unrelated to issue of whether Intox EC/IR II was mal-functioning at relevant time — Designation of device as “approved instrument”and of F as “qualified technician” were both presumptively established by certif-icate of analysis.

Cases considered by L.M. Schwann J.:

R. v. Adams (1986), 51 Sask. R. 161, 30 C.C.C. (3d) 469, 1986 CarswellSask128 (Sask. C.A.) — referred to

R. v. Anderson (1984), 45 O.R. (2d) 225, 10 C.C.C. (3d) 417, 39 C.R. (3d) 193,7 D.L.R. (4th) 306, 2 O.A.C. 258, 9 C.R.R. 161, 1984 CarswellOnt 45 (Ont.C.A.) — followed

R. v. Baig (1987), [1987] 2 S.C.R. 537, 45 D.L.R. (4th) 106, 81 N.R. 87, 25O.A.C. 81, (sub nom. Baig v. R.) 37 C.C.C. (3d) 181, 61 C.R. (3d) 97, (subnom. Baig v. R.) 32 C.R.R. 355, 1987 CarswellOnt 121, 1987 CarswellOnt974, [1987] S.C.J. No. 77, EYB 1987-67492 (S.C.C.) — followed

R. v. Bigsky (2006), 2006 SKCA 145, 2006 CarswellSask 828, [2007] 4 W.W.R.99, 289 Sask. R. 179, 382 W.A.C. 179, 217 C.C.C. (3d) 441, 45 C.R. (6th)69, [2006] S.J. No. 801 (Sask. C.A.) — referred to

R. v. Biniaris (2000), 2000 SCC 15, 2000 CarswellBC 753, 2000 CarswellBC754, 184 D.L.R. (4th) 193, 143 C.C.C. (3d) 1, 32 C.R. (5th) 1, [2000] S.C.J.No. 16, 252 N.R. 204, [2000] 1 S.C.R. 381, 134 B.C.A.C. 161, 219 W.A.C.161 (S.C.C.) — referred to

R. v. Dwernychuk (1992), 42 M.V.R. (2d) 237, 135 A.R. 31, 33 W.A.C. 31, 12C.R.R. (2d) 175, 77 C.C.C. (3d) 385, 1992 CarswellAlta 263, [1992] A.J.No. 1058, 1992 ABCA 316 (Alta. C.A.) — considered

R. v. Grondin (2012), 2012 SKQB 182, 2012 CarswellSask 313, [2012] S.J. No.296, 33 M.V.R. (6th) 36, [2012] 11 W.W.R. 720, 397 Sask. R. 1 (Sask.Q.B.) — followed

R. v. Helm (2011), 2011 SKQB 32, 2011 CarswellSask 36, [2011] S.J. No. 38, 8M.V.R. (6th) 59, [2011] 6 W.W.R. 641, 368 Sask. R. 115 (Sask. Q.B.) —referred to

R. v. Jackson (2015), 2015 ONCA 832, 2015 CarswellOnt 18194, [2015] O.J.No. 6274, 87 M.V.R. (6th) 5, 128 O.R. (3d) 161, 25 C.R. (7th) 243, 342O.A.C. 284, 332 C.C.C. (3d) 466 (Ont. C.A.) — considered

R. v. Jackson (2016), 2016 CarswellOnt 2793, [2016] S.C.C.A. No. 38(S.C.C.) — referred to

R. v. Kvale (2015), 2015 SKPC 131, 2015 CarswellSask 730, [2015] S.J. No.618, 89 M.V.R. (6th) 314 (Sask. Prov. Ct.) — referred to

R. v. Lange (2016), 2016 SKCA 70, 2016 CarswellSask 368, [2016] S.J. No.311 (Sask. C.A.) — referred to


R. v. Larocque (2015), 2015 SKQB 354, 2015 CarswellSask 699, [2015] S.J.No. 599, 91 M.V.R. (6th) 89 (Sask. Q.B.) — considered

R. v. Lising (2005), 2005 SCC 66, 2005 CarswellBC 2691, 2005 CarswellBC2692, (sub nom. R. v. Pires) 259 D.L.R. (4th) 441, (sub nom. Lising v. TheQueen) 201 C.C.C. (3d) 449, 33 C.R. (6th) 241, 241 N.R. 147, 217 B.C.A.C.65, 358 W.A.C. 65, 49 B.C.L.R. (4th) 33, [2006] 4 W.W.R. 403, (sub nom.R. v. Pires) 136 C.R.R. (2d) 85, [2005] 3 S.C.R. 343, [2005] S.C.J. No. 67(S.C.C.) — followed

R. v. Mellquist (2014), 2014 SKPC 48, 2014 CarswellSask 118, [2014] S.J. No.105, 303 C.R.R. (2d) 311, 439 Sask. R. 206 (Sask. Prov. Ct.) — considered

R. v. Mowrey (2016), 2016 SKPC 57, 2016 CarswellSask 249, [2016] S.J. No.201 (Sask. Prov. Ct.) — considered

R. v. Novis (1987), 50 M.V.R. 1, 22 O.A.C. 244, 36 C.C.C. (3d) 275, 1987 Cars-wellOnt 57, [1987] O.J. No. 754 (Ont. C.A.) — considered

R. v. Omar (2007), 2007 CarswellOnt 946, 2007 ONCA 117, [2007] O.J. No.541, 221 O.A.C. 76, 218 C.C.C. (3d) 242, 46 C.R. (6th) 174, 84 O.R. (3d)493, 151 C.R.R. (2d) 292 (Ont. C.A.) — referred to

R. v. Pelletier (1995), 97 C.C.C. (3d) 139, 128 Sask. R. 214, 85 W.A.C. 214, 38C.R. (4th) 242, 1995 CarswellSask 3, [1995] S.J. No. 115 (Sask. C.A.) —considered

R. v. Shepherd (2007), 2007 SKCA 29, 2007 CarswellSask 122, [2007] 4W.W.R. 659, 44 M.V.R. (5th) 8, 289 Sask. R. 286, 382 W.A.C. 286, [2007]S.J. No. 119, 218 C.C.C. (3d) 113, 45 C.R. (6th) 213, 154 C.R.R. (2d) 38(Sask. C.A.) — referred to


Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982,being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11

Generally — referred tos. 7 — considereds. 10(a) — considereds. 10(b) — considereds. 24(2) — considered

Criminal Code, R.S.C. 1985, c. C-46s. 253(1)(b) — referred tos. 254(1) — considereds. 258 — considereds. 258(1)(a) — considereds. 258(1)(c) — considereds. 258(1)(d.1) [en. 1997, c. 18, s. 10(2)] — considereds. 258(1)(e) — considereds. 258(1)(g) — considereds. 258(6) — considereds. 686 — considered

R. v. Kvale L.M. Schwann J. 19

s. 686(1)(a) — considered

Forms considered:

Criminal Code, R.S.C. 1985, c. C-46Form 35 — referred to

APPEAL by accused from judgment reported at R. v. Kvale (2015), 2015 SKPC60, 2015 CarswellSask 729, [2015] S.J. No. 617 (Sask. Prov. Ct.), convictinghim of driving with excessive alcohol.

Brian A. Hendrickson, Q.C., for CrownMervin N. Nidesh, Q.C., for Appellant

L.M. Schwann J.:

1 The appellant, Gary Lynn Kvale, was convicted under s. 253(1)(b) ofthe Criminal Code, RSC 1985, c C-46 of driving while over .08. Mr.Kvale appeals from that conviction.

2 While the notice of appeal filed in this matter sets out numerous ap-peal grounds of a generic nature uncorrelated to the facts and/or the trialdecision, the grounds of appeal actually argued by Mr. Kvale were these:

1. That the learned trial judge erred in not ordering disclosure ofthree specific documents which violated the appellant’s rightsunder s. 7 of the Canadian Charter of Rights and Freedoms[Charter]; and

2. The learned trial judge erred in finding that the appellant’s right tocounsel guaranteed by s. 10(b) of the Charter was not breached.

FACTS AND PROCEDURAL HISTORY3 The facts relevant to this appeal are fully set out in the decision of

Gordon P.C.J. on the voir dire (2015 SKPC 60 (Sask. Prov. Ct.)) [VoirDire Decision] and in her subsequent decision on Mr. Kvale’s disclosureapplication (2015 SKPC 131 (Sask. Prov. Ct.)) [Disclosure Decision].They will not be repeated except to the extent necessary to dispose ofthis appeal.

4 In the course of conducting a stop check program for impaired driverson November 29, 2014, Cst. Lawrence from the Moose Jaw Police Ser-vice signalled Mr. Kvale to stop his vehicle. This occurred shortly before0014 hours.


5 When Cst. Lawrence approached the vehicle he could smell beveragealcohol on Mr. Kvale and noted that he had glossy eyes. In response tothe officer’s question about whether he was drinking, Mr. Kvale re-sponded affirmatively.

6 An approved screening device demand was made at 0015 hours. Mr.Kvale blew a fail.

7 At 0017 hours, Cst. Lawrence placed Mr. Kvale under arrest and pro-vided him with his right to counsel by reading from a standard issue card.Cst. Lawrence asked Mr. Kvale “Do you understand?”. He responded“Ya”. He then asked “Do you want to call a lawyer?”. Mr. Kvale re-sponded “No, I am not rich”. Cst. Lawrence proceeded to explain to himthat he could supply a list of lawyers to Mr. Kvale and there was legalaid free of charge. Cst. Lawrence once again asked him if he wanted tocontact a lawyer, and once again Mr. Kvale replied “No” but added “I’dlike to go the bathroom”.

8 Cst. Lawrence drove Mr. Kvale directly to the police station. Theyarrived at 0026 hours and Mr. Kvale was immediately allowed to use thewashroom.

9 Following an observation period to monitor for mouth alcohol, burp-ing and belching, two breath samples were taken from Mr. Kvale. Mr.Kvale was required to blow into the intoxilyzer administered by the tech-nician, Cst. Forbes. The results from both tests revealed a blood alcoholcontent of 90 milligrams of alcohol in 100 millilitres of blood. Cst.Forbes prepared a certificate of analysis and a copy of that certificate wasserved on Mr. Kvale by Cst. Lawrence before he left the police station.

10 The trial began with a voir dire on April 6, 2015 to determinewhether Mr. Kvale’s ss. 10(a) and 10(b) Charter rights were infringed,and if so, whether the certificate of analysis should be excluded under s.24(2) of the Charter. At the outset of the voir dire, counsel for Mr. Kvaleindicated to the court as follows:

Mr. Nidesh: We’re agreed that all admissible evidence is to form partof the trial proper,

11 The certificate of analysis was entered as Exhibit P2 on the voir dire.12 Judge Gordon reserved on the voir dire application and rendered a

written decision on May 11, 2015. She found no breach of Mr. Kvale’s s.10(a) or (b) rights on the facts before her and admitted Exhibit P2 — thecertificate of analysis — into evidence in the trial proper (Voir Dire De-cision, para 28).


13 The parties once again appeared in Provincial Court on May 11, 2015for the decision on the voir dire. At the request of defence counsel, thetrial was adjourned to May 25, 2015. The matter came up in court onMay 25, June 2, June 8, June 9, June 25 and June 29, 2015. On most ofthese occasions the trial was adjourned at the request of Mr. Kvale.

14 Entries on the court record for June 29, 2015 show that proceedingswere adjourned to July 13, 2015 for “trial cont.”. But the trial did notcontinue on that date. Instead it was adjourned over to July 21, 2015.When the trial finally re-convened on July 21st, the court was asked todeal with a defence application brought under s. 7 of the Charter fordisclosure and production of:

1. A copy of the designation as a qualified technician for RyanGeorge Forbes for the Intox EC/IR II;

2. A copy of the certification for the operation of the Intox EC/IR IIfor Ryan George Forbes, and

3. A copy of the annual proficiency examination and annual certifi-cation of Ryan George Forbes for the Intox EC/IR II.

15 Defence counsel filed no affidavit evidence in support of the applica-tion nor was any viva voce evidence called.

16 The Crown objected to the application. It was their position the appli-cation should have been brought much sooner. Nonetheless, the Crownoffered to hold a disclosure hearing. When questioned by the trial judgeabout the timing of his application, Mr. Nidesh responded (Transcript ofProceedings, p. T46, lines 14-23 [Transcript]):

The answer is simply this. In canvassing the internet it came to myattention that what I’m seeking is now a requirement in Alberta, theYukon and British Columbia so I’m — I don’t know what the situa-tion is here but it is — it came to my attention. The other thing is,again I repeat, Your Honour, we haven’t gotten into the substantivedefences so that in terms of — in terms of your comments first of allits something that just came to my attention; secondly, we haven’tgot to the substantive part. And before — before I have my client goto the expense of engaging an expert what I am endeavouring to findout is so what I’m trying to find out information with respect to thetechnician and the essence is whether or not the technician remainsqualified.

17 Even though the learned trial judge had reservations about Mr.Kvale’s s. 7 Charter application and its tardiness relative to the trial, shenonetheless set aside August 20, 2015 for full argument on disclosure


and gave the parties leave to file written submissions. It does not appearfrom the court record that either party took her up on this suggestion.

18 The next court appearance was on August 20, 2015. The docket sheetdoes not indicate precisely what transpired on that date apart from anentry at the bottom which states the matter was adjourned over to Octo-ber 20, 2015 for a decision on the disclosure request. No transcript ofproceedings on August 20th was produced for appeal purposes.

19 As mentioned, Judge Gordon rendered a written decision on Mr.Kvale’s s. 7 Charter application on October 20, 2015. Judge Gordon’sdecision provides no insight as to what the parties had argued or howthey framed their arguments apart from commenting upon the absence ofany evidentiary foundation and its tardiness relative to the trial.

20 One further adjournment was granted on October 28, 2015 before thetrial concluded on November 10, 2015. The defence called no evidence.Mr. Nidesh said “We recognize that in light of your ruling you’re goingto render a decision of conviction here. In position to speak to sentence”.Although Judge Gordon did not actually verbalize a conviction, the par-ties appear to have accepted that outcome as they proceeded quickly tosentencing. A conviction in Form 35 of the Criminal Code was enteredon November 10, 2015.

THE DECISION ON THE DISCLOSURE APPLICATION21 The learned trial judge began her decision with two observations

which appeared to have loomed large in her analysis. First, she outlinedthe lengthy procedural history of this prosecution commencing with afirst appearance on December 15, 2014. Second, she refreshed defencecounsel’s recollection as to what he and the Crown had agreed to at thestart of the first voir dire and what had been subsequently ordered in theVoir Dire Decision, namely:

2 By agreement all of the Crown’s evidence was entered on a Char-ter voir dire with the understanding that all admissible evidence onthe voir dire would be evidence at the trial proper...

22 Judge Gordon dismissed the application chiefly on procedural or tim-ing grounds. Relying upon the decisions in R. v. Pelletier (1995), 97C.C.C. (3d) 139 (Sask. C.A.) and R. v. Mellquist, 2014 SKPC 48, 439Sask. R. 206 (Sask. Prov. Ct.) [Mellquist], she strongly articulated theneed for timely Charter notices and expressed concern for trial fairness.She drew particular support from the Alberta Court of Appeal decision inR. v. Dwernychuk, 1992 ABCA 316, 77 C.C.C. (3d) 385 (Alta. C.A.)


[Dwernychuk] which had been heavily relied upon in Mellquist. In com-menting upon the lack of sufficiency of Charter notices, the court inDwernychuk said:

16. Moreover, the onus in the case of most allegations that a Charterright has been infringed being upon the defence, there is an elementof unfairness to the Crown if the court allows the defence to lie inambush and thus requires the Crown to anticipate every possible in-fringement. The Crown would be encouraged to call evidence orhave on “standby” Crown witnesses, usually police officers, whomight be able to give testimony concerning possible issues, whichwhen the trial concludes turn out to be non-issues. That is surely notto be encouraged. Moreover, it would be, in the result, akin to plac-ing the onus upon the Crown when, in law, it should not be.

23 In relation to the issue of trial fairness, Judge Gordon commentedupon defence counsel’s failure to alert the Crown or for that matter thecourt to a disclosure issue, particularly given counsel’s earlier assurancethat the evidence on the voir dire would apply to the trial proper. Toallow the application at this stage, she reasoned, would be unfair to theCrown.

24 Judge Gordon went on to rule on the merits, although the reasons pro-vided for doing so were brief. She stated that as the defence had failed toestablish an appropriate evidentiary basis for the disclosure application itmust be dismissed. In answer to defence counsel’s argument that heneeded the information in order to rebut the presumption set out in s. 258of the Criminal Code, the trial judge stated: “This argument was availa-ble to Mr. Nidesh’s client right from the start” (Disclosure Decision, para14).

ANALYSIS

1. Jurisdiction and standard of review25 Section 686 of the Criminal Code prescribes the powers of an appel-

late court when an appeal is taken from conviction. Pursuant to s.686(1)(a), the appeal may be allowed if the verdict is unreasonable orcannot be supported by the evidence, the trial judge made a wrong deci-sion on a question of law, or any ground where there was a miscarriageof justice.

26 Where an appeal is on factual grounds, the standard of review iswhether there is evidence upon which a trier of fact, properly instructed,could reasonably have reached the verdict (R. v. Bigsky, 2006 SKCA


145, 217 C.C.C. (3d) 441 (Sask. C.A.) and R. v. Biniaris, 2000 SCC 15,[2000] 1 S.C.R. 381 (S.C.C.)). The appellate court ought not re-examineand re-weigh the evidence but only consider the evidence to determine ifit was reasonably capable of supporting the trial judge’s conclusion (R. v.Helm, 2011 SKQB 32, 368 Sask. R. 115 (Sask. Q.B.)).

27 The standard of review is correctness for an appeal on a question oflaw. The appellate court should intervene if the decision is not correct inlaw unless (in the case of defence appeals) there has been no substantialwrong or miscarriage of justice that has occurred (R. v. Shepherd, 2007SKCA 29, 218 C.C.C. (3d) 113 (Sask. C.A.)).

28 This Court’s decision in R. v. Grondin, 2012 SKQB 182, 397 Sask. R.1 (Sask. Q.B.) summarizes the appropriate standard of review where theground of appeal stems from a decision on a Charter application. Atpara. 17 the court said:

17 The standard of review on appeal of a Charter application, and onthe denial or granting of remedies under s. 24(2) is laid out discretelyin R. v. Farrah, 2011 MBCA 49, [2011] 12 W.W.R. 694. At para. 7,the Court noted that there are several components to the question:

a) When examining a judge’s decision on whether a Charterbreach occurred, the appellate court will review the decisionto ensure that the correct legal principles were stated and thatthere was no misdirection in their application. This raisesquestions of law and the standard of review is correctness.

b) The appellate court will then review the evidentiary founda-tion which forms the basis for the judge’s decision to seewhether there was an error. On this part of the review, thejudge’s decision is entitled to more deference and, absent pal-pable and overriding error, the facts as found by the judgeshould not be disturbed (see Grant at para. 129).

c) The appellate court will also examine the application of thelegal principles to the facts of the case to see if the facts, asfound by the judge, satisfy the correct legal test. In the crimi-nal law context, this is a question of law and the standard ofreview is correctness (see R. v. Shepherd, 2009 SCC 35atpara. 20, [2009] 2 S.C.R. 527).

d) The decision on whether to exclude under s. 24(2) of theCharter is an admissibility of evidence issue which is a ques-tion of law. However, because this determination requires thejudge to exercise some discretion, “considerable deference” isowed to the judge’s s. 24(2) assessment when the appropriate


factors have been considered (see Grant at para. 86, and R. v.Beaulieu, 2010 SCC 7at para. 5, [2010] 1 S.C.R. 248).

2. Did the learned trial judge err in not ordering disclosure ofdocuments and thereby violated s. 7 of the Charter?

29 Judge Gordon dismissed the disclosure application on two principledbases. The first stemmed from the power of a trial judge to manage itsown process, animated by concern for trial fairness. The second wasgrounded on a void evidentiary foundation.

30 Under the rubric of an application pursuant to s. 7 of the Charter, Mr.Kvale applied for disclosure of three documents: the designation of Cst.Forbes as a qualified technician for the Intox EC/IR II, the certificationfor Cst. Forbes to operate the Intox EC/IR II, and Cst. Forbes’ annualproficiency examinations and annual certificates.

31 The thrust of his argument on appeal appears to be that Mr. Kvalewas deprived of a fair trial because the Crown refused disclosure of thesought after documents and the trial judge erred in not allowing him toadvance a defence utilizing the documents referenced in the Charter ap-plication. In fact, without the documents, no defence evidence wascalled.

32 Mr. Nidesh contends these documents were required to establish (orrefute) that the Intox EC/IR II has actually been designated by the Attor-ney General, and that Cst. Forbes was appropriately qualified and certi-fied to operate this particular breathalyzer instrument. He also seeks doc-umentation concerning Cst. Forbes’ annual proficiency testing. Mr.Nidesh submits it was up to the Crown to establish that Cst. Forbes wascertified on the Intox EC/IR II on the day in question and that Cst.Forbes has maintained his proficiency. In his opinion, the Crown shouldhave filed the designation.

33 Appellate review of Judge Gordon’s decision is hampered by the ab-sence of any indication of precisely what was argued on August 20th.While the transcript on July 21st appears to suggest the application was toproceed as a disclosure application, no briefs of law or case authoritywere filed. There is nothing to indicate if the disclosure issue was arguedin a substantive sense, apart from Judge Gordon’s reference to the ab-sence of an evidentiary foundation.

34 However, for the reasons which follow, I am of the view JudgeGordon did not err in dismissing the application on procedural grounds.It was her view the application had come too late. Mr. Nidesh submits


she erred because the trial had not concluded and he had yet to call de-fence evidence. He wanted the documents to determine his position andnext steps.

35 Although it was open to Judge Gordon to handle the trial in a differ-ent manner, I am unable to conclude that she erred in law in dismissingthe application. I say this for several reasons.

36 First, analysis of Mr. Kvale’s breath sample had already been admit-ted into evidence in the trial proper by way of admission before the dis-closure request was made. At the start of the voir dire, counsel for Mr.Kvale clearly and unequivocally agreed that if his application under ss.10(a) and (b) of the Charter was unsuccessful, all Crown evidence fromthe voir dire would be applied to the trial. This result was confirmed inthe Voir Dire Decision.

37 Second, it appears from the tenor of her reasons that Judge Gordonunderstood Mr. Nidesh’s agreement in relation to Exhibit P2 to be that itwould be admitted for the truth of its contents. Whether that was whatMr. Nidesh intended is not abundantly clear from the record, nonethelessthat is how Judge Gordon appears to have understood him.

38 Third, s. 258(1)(e) provides that a certificate of an analyst stating thatthe analyst has made an analysis of a breath sample and stating the resultof that analysis is evidence of the facts alleged in the certificate withoutproof of the signature or the official character of the person signing thecertificate. Section 258(1)(g) provides that where samples of breath havebeen taken, a certificate stating that the analysis has been made by meansof an approved instrument operated by the technician and ascertained bythe technician to be in proper working order is evidence of the facts al-leged in the certificate without proof of the signature or the official char-acter of the person who signed the certificate.

39 The certificate in question (Exhibit P2) states that: 1) Ryan GeorgeForbes is a person designated pursuant to s. 254(1) as qualified to operatethe Intox EC/IR II and therefore a qualified technician; 2) the IntoxEC/IR II is an approved instrument, 3) the instrument used to analyseMr. Kvale’s breath samples was in proper working order; and 4) Cst.Forbes received the breath samples directly into an Intox EC/IR II whichwas operated by him.

40 In spite of the presumptive nature of Exhibit P2, Mr. Nidesh contendsthe sought after documents are required because the Crown had to estab-lish that the instrument was designated and Cst. Forbes was a certifiedtechnician. Mr. Kvale’s position is inconsistent with established law.


There are four ways for the Crown to prove the official character of theperson who operated the instrument used for receiving the breath sam-ples. Reliance on the certificate and s. 258(1)(a) is one such way (R. v.Adams (1986), 30 C.C.C. (3d) 469 (Sask. C.A.); R. v. Lange, 2016SKCA 70 (Sask. C.A.)).

41 A similar issue arose in R. v. Novis (1987), 36 C.C.C. (3d) 275 (Ont.C.A.) dealing with a precursor section to ss. 258(1)(e) and (g). The courtsaid:

28 Is the presentation of the certificate proof itself of the designationof the qualified technician? In R. v. Evanson, [1973] 4 W.W.R. 137,11 C.C.C. (2d) 275, the Manitoba Court of Appeal held that it was. Inthat case the certificate of analysis described Constable Allan as aperson designated as a qualified technician by the Attorney Generalof Manitoba pursuant to the predecessor of s. 238(1) of the Code andthe words “qualified technician” appeared beneath his signature.

29 Dickson J.A. (as he then was), in delivering the judgment of theCourt, stated at p. 278 [C.C.C.]:

The words of s. 237(1)(f) [now s. 241(1)(g)] are plain andunambiguous. The intent of the subsection is obviously toease the evidential burden of the Crown by permitting ev-idence by certificate of matters which would otherwisehave to be established by viva voce evidence. The fullforce of s. 237(1)(f) must be recognized.

And further, at p. 280:

Turning then to the concluding words of s. 237(1)(f) mak-ing the technician’s certificate evidence of the statementscontained therein ‘without proof of the signature or theofficial character of the person appearing to have signedthe certificate’, the certificate before us appears to havebeen signed by Constable Allan. He says in the certificatethat he is a person designated as a qualified technician bythe Attorney-General of Manitoba. Do the statements inthe certificate become evidence without further proof ofhis official character? It would seem to us that they do.We think the words ‘official character’ can only have ref-erence to the official position by virtue of which the sig-natory signs the certificate, viz., a ‘qualified technician’.There can be little doubt that the purpose is to save thetime and expense of calling the qualified technician ineach and every case and thereby facilitate the orderly ad-ministration of justice. If an accused against whom a cer-


tificate described in s. 237(1)(f) is produced wishes tochallenge the statement of the person signing the certifi-cate that he is properly designated as a qualified techni-cian, the accused may, with leave of the Court, require theattendance of the qualified technician for the purposes ofcross-examination. Section 237(4) [now s. 241(6)] affordshim that right.

42 Fourth, pursuant to s. 258(6), if the Crown intends to produce the cer-tificate as evidence at trial, the accused may, with leave of the court,require the attendance of the analyst for cross-examination purposes.Thus, if it was counsel’s intention to challenge Cst. Forbes on his certifi-cation, training and qualifications, he was required by s. 258(6) of theCriminal Code to provide notice of his intention to do so. No notice wasgiven, and in any event by the time of his application, the Crown hadalready rested its case.

43 Fifth, it was not obvious the documents sought were aimed at chal-lenging the presumption of accuracy and identity as contended on appeal.When the technical requirements of ss. 258(1)(c) and (d.1) of the Crimi-nal Code are met, the evidence of the results of the analysis is, in theabsence of evidence to the contrary, deemed to be conclusive proof ofthe concentration of alcohol in the accused’s blood at the time of theoffence and proof that the concentration of alcohol in blood exceeded 80mg alcohol in 100 ml of blood. To rebut the presumption resulting froms. 258(1)(c), the accused must show that the approved instrument wasmalfunctioning or was operated improperly.

44 All of that said, it seems to me Mr. Kvale was not barred from chal-lenging the certificate. There are a number of statutory presumptions atplay, but they are rebuttable by evidence to the contrary for purposes ofraising a reasonable doubt. And in order to rebut some of those presump-tions, Mr. Kvale arguably needed disclosure. The issue framed by JudgeGordon, though, was whether the documents should be disclosed at thatlate stage of the proceedings particularly given the absence of any evi-dentiary foundation.

45 In view of the procedural landscape confronting her at that juncture inthe trial, the nature of the documents requested, and for the reasonsgiven, taken in their totality, one can readily see why Judge Gordon dis-missed the application. The documents sought were unrelated to the issueof whether the Intox EC/IR II was malfunctioning at the time. The desig-nation of the instrument in question as an “approved instrument” anddesignation of Cst. Forbes as a “qualified technician” were both pre-


sumptively established by Exhibit P2. No notice was given under s.258(6) to cross-examine Cst. Forbes. The trial was protracted chiefly be-cause of repeated requests by the defence to adjourn. And, finally, thedisclosure application was borne out of what counsel characterized asemerging trends discovered on the internet. Viewed in light of the totalityof these factors, Judge Gordon, in my view, did not err in her decision.

46 There is some judicial support for the notion that a trial judge has theright to control the trial process. In a recent ruling on a document disclo-sure application in a drinking and driving case, the Ontario Court of Ap-peal in R. v. Jackson, 2015 ONCA 832, 332 C.C.C. (3d) 466 (Ont. C.A.)(under appeal to the Supreme Court of Canada [2016 CarswellOnt 2793(S.C.C.)]) reaffirmed the trial court’s power to manage the disclosureprocess. At para. 139, Watt J.A. observed:

[139] It is critical for the efficient operation of trial courts, especiallythose in which alcohol-driving offences occupy a prominent place onthe docket, that they be able to control their process. This includesthe authority to discourage unmeritorious third party records applica-tions that devour limited resources...

47 The ability of trial courts to dismiss unmeritorious applications with-out a hearing is a well-established principle of law. In R. v. Lising, 2005SCC 66 (S.C.C.) at para 35, [2005] 3 S.C.R. 343 (S.C.C.), for instance,the Supreme Court observed:

35 The concern over the constructive use of judicial resources is asequally, if not more, applicable today as it was 15 years ago whenGarofoli was decided. For our justice system to operate, trial judgesmust have some ability to control the course of proceedings beforethem. One such mechanism is the power to decline to embark uponan evidentiary hearing at the request of one of the parties when thatparty is unable to show a reasonable likelihood that the hearing canassist in determining the issues before the court.

(See also R. v. Omar, 2007 ONCA 117 (Ont. C.A.) at para 31,(2007), 218 C.C.C. (3d) 242 (Ont. C.A.).)

48 For all of the reasons given, this ground of appeal must be dismissed.

3. Did the trial judge err in law in finding that the appellant’s right tocounsel guaranteed by s. 10(b) of the Charter was not breached?

49 Mr. Kvale submits the learned trial judge erred in determining therehad been no breach of Mr. Kvale’s s. 10(b) Charter rights.


50 The facts found by the trial judge in relation to the s. 10(b) argumentare as follows:

a. The police officer clearly gave Mr. Kvale his right to counsel at0017 hours;

b. Cst. Lawrence explained what this meant and asked Mr. Kvale ifhe wanted to call a lawyer. Mr. Kvale replied “No, I’m not rich”.The trial judge stated “I take this to mean he did not have alawyer”;

c. Cst. Lawrence offered to provide a list of lawyers and pointed outthe existence of a legal aid plan which was free of charge;

d. Cst. Lawrence again asked Mr. Kvale “Do you want to contact alawyer” to which Mr. Kvale replied “No”;

e. Mr. Kvale testified that he had diabetes and that he had to go tothe bathroom;

f. Mr. Kvale did not testify that he was so focused on going to thebathroom or physically uncomfortable to the extent that he did notunderstand his rights or for that matter felt he had to forgo hisright to counsel in order to be allowed to go to the bathroom;

g. Mr. Kvale did not testify that he was under the impression he hadto choose between the bathroom or exercising his right to counsel;

h. Mr. Kvale appeared in the video and in his responses on the voirdire to understand what was going on and did not appearconfused;

i. Mr. Kvale was not extremely intoxicated and he gave no indica-tion that he did not understand the process; and

j. At no time did Mr. Kvale indicate any interest in calling a lawyer.51 Mr. Nidesh argues there was a breach of s. 10(b) because Mr. Kvale’s

responses were equivocal and he did not understand his right to counselsince he was preoccupied with an urgent need to go to the bathroom. Inthat Mr. Kvale’s responses to Cst. Lawrence were equivocal, Mr. Nideshargues Cst. Lawrence should have given Mr. Kvale his rights again at thepolice station.

52 Mr. Nidesh provided a number of decisions where the accused gaveequivocal responses. He also referenced R. v. Larocque, 2015 SKQB354, 91 M.V.R. (6th) 89 (Sask. Q.B.) [Larocque], a decision from thisCourt, which encourages police to give a second warning at the policestation.


53 The Crown’s position is straightforward. The videotape evidence (Ex-hibit P1) clearly shows that Mr. Kvale declined counsel. When asked ifhe wished to contact counsel, he said “no” not once but twice. Absentproof Mr. Kvale did not understand his right to retain counsel when hewas given his Charter rights, the Crown submits the onus shifts to theaccused to establish that he did not understand his right to retain andinstruct counsel. There is no evidence Mr. Kvale misunderstood his rightto counsel. Quite to the contrary, he testified that he understood.

54 As referenced above, the trial judge made several key findings of fact.She found that Cst. Lawrence administered the s. 10(b) Charter rights toMr. Kvale in the police cruiser. No issue was taken with its accuracy orits sufficiency.

55 The trial judge also found that Mr. Kvale clearly declined to takesteps to engage his right to counsel, and that he clearly and unequivo-cally said “No”.

56 Mr. Nidesh contends Mr. Kvale’s rights were compromised becausehe was unable to focus his mind on the right to counsel because he wasovercome by the need to urinate. No case law specific to this unique setof facts was cited in support nor am I aware of any such authority.

57 The basic principle applicable to the issue at hand was enunciated inR. v. Anderson (1984), 10 C.C.C. (3d) 417 (Ont. C.A.) and subsequentlyaffirmed in R. v. Baig, [1987] 2 S.C.R. 537 (S.C.C.), where at p. 540 theSupreme Court said:

... I am of the view that, absent proof of circumstances indicating thatthe accused did not understand his right to retain counsel when hewas informed of it, the onus has to be on him to prove that he askedfor the right but it was denied or he was denied any opportunity toeven ask for it. No such evidence was put forth in this case.

58 This principle was recently applied in Larocque (para 43) and is help-fully summarized at para 34 of R. v. Mowrey, 2016 SKPC 57 (Sask.Prov. Ct.):

34 The cases of R. v. Baig, [1987] 2 S.C.R. 537 (S.C.C.); R. v. My-troen, 2015 SKPC 83 (Sask. Prov. Ct.); R. v. Larocque, 2015 SKQB354 (Sask. Q.B.) and R. v. Owens, 2015 ONCA 652 (Ont. C.A.) alldealt with situations where at the road side, the accused clearly statedthat he understood his Charter rights and did not want to call a law-yer. In each of these cases, the court held that where there was a clearand unequivocal renunciation of rights to counsel, the police officerwas entitled to rely upon that, could proceed with the investigation,


and needed to take no further steps regarding advising of Charterrights. All of these decisions indicate that in such circumstances, theaccused must say something to invoke his Charter rights before thepolice will be required to take further steps regarding those rights.

59 In my opinion, the findings of fact made by the trial judge are sup-ported by the evidence. Mr. Kvale said “no” on two occasions whenasked if he wanted to contact counsel. There was no evidence he wasdenied the right to counsel and there was no evidence he took steps toinvoke his Charter rights.

60 A fair reading of the evidence, though, reveals that Mr. Kvale had apressing need to urinate. Yet in spite of his physical discomfort, there isno evidence Mr. Kvale’s attention or ability to understand was compro-mised in any way. In fact, under cross-examination Mr. Kvale quiteclearly stated that he understood his right to counsel. This is reflected atp. T35, lines 40-41 and p. T-36, lines 1-36 of the Transcript:

Q And what was being said to you about a lawyer and that sortof thing, you understood, sir, it’s just my — my friend askedyou that you were — you needed to urinate when you were inthe back seat, correct? Like it’s not like you didn’t understandwhat was being said to you by the officer, correct?

A Well, I don’t know if you’ve had an incident where your uri-nation has to be done and you don’t get more nervous. I do,like if I really got to go —

Mr. Hendrickson: But —

Mr. Nidesh: Let me finish.

Q I guess in fairness, though, what I’m saying, sir, is that you’resaying — you’re not telling me that you didn’t understandwhat was being asked of you and what was being said to you.You were nervous, you’re saying, correct?

A That’s right.

Q But you understood what was being said to you.

A Well, as well as I could, I guess.

Q Even, for example, when the officer says to you about the —sort of like presented the approved screening device to you,the blow box or whatever, you understood what was —

A Oh, yeah.

Q — what was requested of you, right? You blew into the in-strument, correct?

A I hope I did.


Q Right, well, that’s the — you did, right, because we saw it onthe video correct?

A Mhmm.

Q So its not a question of you not understanding these things,it’s that you needed to go the bathroom and that you werenervous, correct? Again you’re nodding your head yes or say-ing yes.

A Yes, sorry.

61 The fact Cst. Lawrence failed to give Mr. Kvale his rights a secondtime at the police station does not assist him. In the circumstances, asecond warning was not required because the trial judge had determinedthat Mr. Kvale had not expressed a desire to exercise his right to counsel.Neither do the comments made in para 53 of Larocque assist Mr. Kvaleas they were obiter dicta and merely a recommendation as to sound po-licing practice.

62 I am satisfied that the evidence is reasonably capable of supportingthe trial judge’s conclusion, and that she committed no error of law inapplying the legal principle to the facts as found.

CONCLUSION63 For the reasons given, Mr. Kvale’s appeal from conviction is dis-

missed and the conviction stands. With the appeal now determined bythis Court, the stay of Mr. Kvale’s licence suspension pursuant to theorder of May 13, 2016 has effectively expired.

Appeal dismissed.


[Indexed as: R. v. Albert]

HER MAJESTY THE QUEEN (Appellant) and GINA ROSEMARIE ALBERT (Respondent)

New Brunswick Court of Queen’s Bench

Docket: NCA-1-2016

2016 NBQB 154, 2016 NBBR 154

John J. Walsh J.

Heard: August 10, 2016

Judgment: August 12, 2016

Motor vehicles –––– Offences and penalties — Offences — Uninsured vehi-cle — Miscellaneous –––– Proof of insurance — Accused driver was stoppedfor speeding and was ticketed for not carrying evidence of insurance, in viola-tion of s. 28(1.1) of Motor Vehicle Act — Provincial Court judge found thataccused had with her such card in electronic format displayed on her cell phone,and acquitted her on basis that this met requirements of Act — Crown appealedacquittal — Appeal allowed — Carrying cell phone that displays motor vehicleliability insurance card from email attachment does not constitute carrying mo-tor vehicle liability insurance card as required by Act — Provincial Court Judgeerred in effectively interpreting requirement that every driver must carry in theirvehicle or on their person motor vehicle liability insurance card as being broadenough to capture electronic display of such card — Gravamen of offencecharged was not that accused did not have motor vehicle liability insurance,which she did, but that she did not carry card establishing existence of suchinsurance — Traffic ticket referred to offence of “not carrying evidence of insur-ance” in violation of s. 28(1.1), which specifies means of proof as by card —Based on principles of statutory interpretation, word “card” in s. 28(1.1.) doesnot capture one that is electronically displayed, but means actual, not virtual,card — Acquittal set aside and conviction entered — Matter remitted back toProvincial Court judge for sentencing.

Cases considered by John J. Walsh J.:

R. v. Canadian Pacific Ltd. (1995), 183 N.R. 323, (sub nom. Ontario v.Canadian Pacific Ltd.) 82 O.A.C. 241, (sub nom. Ontario v. CanadianPacific Ltd.) 30 C.R.R. (2d) 252 at 258, (sub nom. Ontario v. CanadianPacific Ltd.) [1995] 2 S.C.R. 1028, 41 C.R. (4th) 147 at 153, 17 C.E.L.R.(N.S.) 129 at 141, 99 C.C.C. (3d) 97 at 103, 125 D.L.R. (4th) 385 at 391,1995 CarswellOnt 531, (sub nom. Ontario v. Canadian Pacific Ltd.) [1995]S.C.J. No. 6, EYB 1995-67435, 1995 CarswellOnt 7238 (S.C.C.) — referredto

R. v. Albert 35

R. v. Francis (2010), 2010 NBQB 75, 2010 CarswellNB 405, 357 N.B.R. (2d)347, 923 A.P.R. 347 (N.B. Q.B.) — referred to


Canada Evidence Act, R.S.C. 1985, c. C-5s. 31.1 [en. 2000, c. 5, s. 56] — referred tos. 31.3 [en. 2000, c. 5, s. 56] — referred to

Criminal Code, R.S.C. 1985, c. C-46s. 841 — referred to

Evidence Act, R.S.N.B. 1973, c. E-11s. 47.1 [en. 1996, c. 52, s. 1] — considered

Interpretation Act, R.S.N.B. 1973, c. I-13s. 1(1)(a) — considereds. 1(1)(b) — considereds. 1(1)(c) — considereds. 17 — considered

Motor Vehicle Act, R.S.N.B. 1973, c. M-17Generally — referred tos. 28(1.1) — considereds. 28(2) — considereds. 28(2)(a) — considereds. 28(2)(b) — considereds. 279(1) — considereds. 279(4) — considered

Personal Information Protection and Electronic Documents Act, S.C. 2000, c. 5s. 31(1) “electronic document” — referred to

Provincial Offences Procedure Act, S.N.B. 1987, c. P-22.1s. 10(2) — considereds. 55 — considered

Words and phrases considered:

card

. . .in “ordinary meaning” in the immediate context used. . .a photograph of acard or a “screen shot” of a card [would not] constitute carrying a card underSection 28 (1.1.) [of the Motor Vehicle Act, RSNB 1973, c M-17. It] means anactual, not a virtual card; not one, for example, displayed as “an image on a cellphone screen”.

APPEAL by Crown from acquittal of accused charged with not carrying evi-dence of insurance, in violation of s. 28(1.1) of Motor Vehicle Act.

J. Guy Savoie, for AppellantRespondent — per se


John J. Walsh J.:

I. Introduction1 This Summary Conviction Appeal poses a unique question - Does

carrying a cell phone that displays a motor vehicle liability insurancecard from an e-mail attachment constitute carrying a motor vehicle liabil-ity insurance card as required by the Motor Vehicle Act?

2 The Crown appeals against the acquittal of the respondent in the Pro-vincial Court. Following a motor vehicle stop the respondent driver wascharged by way of a ‘traffic ticket’ with: “Not carrying evidence of in-surance in violation of Section 28 (1.1) of the Motor Vehicle Act”. Thatprovision reads:

No person shall operate a motor vehicle that is required to be regis-tered under this Act unless a motor vehicle liability insurance cardissued by an insurer and approved by the Registrar under section 279with respect to that motor vehicle is being carried in the motor vehi-cle or by the driver of the motor vehicle.

(Emphasis added)

3 According to the findings of the learned Provincial Court Judge, therespondent had with her such a card, but in an electronic format, i.e. dis-played on her “phone”. The Judge acquitted, ruling that this met the re-quirements of the Act.

II. Issues4 The Crown claims that the learned Provincial Court Judge made a

number of related errors of law. In my view, those various grounds aresubsumed by the first two set out in the Notice of Appeal:

a. By misinterpreting and misconstruing Section 28 (1.1) of the Mo-tor Vehicle Act;

b. By misinterpreting the precise nature of the offence charged, onthe basis of the prescribed wording used pursuant to Schedule A ofthe General Regulation-Provincial Offences Procedure Act, andas permitted under Section 10 (1) (b) and (2) (a) of the ProvincialOffences Procedure Act;

III. Evidence at Trial5 The respondent was stopped for speeding. The police officer de-

manded her “documents”. According to the officer the respondent ini-tially could not find her proof of insurance, but then provided him an

R. v. Albert John J. Walsh J. 37

“insurance card” that was expired. He exercised his discretion and gaveher a traffic ticket (as noted above) related to the insurance only, and notfor speeding. In cross-examination, the officer denied the respondent at-tempted to show him her phone at the roadside that contained proof ofinsurance by way of an email she had earlier received from her insurancecompany.

6 The respondent testified that sometime before the day she wasstopped she had called her insurance company to obtain a new insurancecard because she had realized that her “good insurance card wasn’t in mytruck”. According to the respondent, the insurance company told her theywould send it to her in the mail. She asked them to send it to her by e-mail in the meantime in case she needed it because she was not at home;she was in Moncton visiting her daughters. She received it by e-mail at-tachment on her phone, but could not print it out because she did nothave access to a printer. The respondent further testified that she had toldthe officer she had her temporary insurance card on her phone in an elec-tronic version, “but he wouldn’t look at it”. The electronic attachmentwas printed out and entered into evidence at trial. The paper printout isentitled a “Temporary Liability Certificate Card”, issued by Certas Homeand Auto Insurance Company, effective the day before the respondentwas stopped.

IV. The Provincial Court Judge’s Reasons for Decision7 The learned Provincial Court Judge implicitly accepted the respon-

dent’s evidence, concluding that the Crown had failed to prove that therespondent committed the offence charged. These are her reasons:

Ms. Albert is charged under Section 28 (1.1) of the Motor VehicleAct. Mr. Savoie read that section of the Motor Vehicle Act and I’llparaphrase: No person shall operate a motor vehicle unless a liabilityinsurance card issued by an insurer is carried in the motor vehicle orby the driver of the motor vehicle. I left out a few words but that’sbasically um what the section — how the section reads. Section 28(2) says the driver of a motor vehicle upon demand by a peace officershall present and deliver unto the peace officer’s hands a motor vehi-cle liability insurance card as required by the section I just read.

Now, the Crown is arguing that technically the offence has beenmade out, she did not have an original for presentation nor did shehave a photo static copy.

Now, interestingly enough, the charge that’s enumerated on the ticketthat was given to Ms. Albert says not carrying evidence of insurance


contrary to Section 28 (1.1). Now, my reading of the section leads meto conclude that Ms. Albert was driving the motor vehicle that day. Itwas the date of the 21st of September 2015 and I accept that she hadon her computer what’s entitled Exhibit D-1, Temporary LiabilityCertificate Card from Certas Home and Auto Insurance Companyand on that piece of paper which she said she printed out from herphone, it contains the information that one would expect to see on aso-called liability insurance card, the Agent’s name, the insured vehi-cle, policy number, effective date, etcetera.

Now, the Section mandates that a liability insurance card issued byan insurer must be carried in the motor vehicle or by the driver. NowMr. Savoie argues that the wording of the Motor Vehicle Act perhapshas not caught up with technology. Well, the Crown has to proveeach and every element of the charge against Ms. Albert beyond areasonable doubt and I’m not satisfied that they have done that be-cause I find that her evidence with regards to carrying the — or whatpurports to be a motor vehicle insurance card in her phone which wasin her hand which would then arguably be carried by the driver of themotor vehicle. In other words, I find that what Ms. Albert had topresent to the Officer that day could be construed as proof of motorvehicle liability and I find that the Crown has not proven their casebeyond a reasonable doubt and I’m dismissing the charge.

(Emphasis Added)

(Transcript, at pp. 22-23)

V. Legal Analysis8 The issues raised on appeal involve statutory interpretation, a ques-

tion of law. The learned Provincial Court Judge in effect interpreted theMotor Vehicle Act requirement that every driver must carry in the motorvehicle or on their person a motor vehicle liability insurance card asbroad enough to capture an electronic display of such a card. With greatrespect, I disagree.

9 Recall the provision of the Act with which the respondent wascharged:

s. 28 (1.1.) No person shall operate a motor vehicle that is required tobe registered under this Act unless a motor vehicle liability insurancecard issued by an insurer and approved by the Registrar under section279 with respect to that motor vehicle is being carried in the motorvehicle or by the driver of the motor vehicle.

(Emphasis added)


10 The reference to Section 279 is a reference to the following: s. 279 (1) Every insurer that issues an owner’s or driver’s automobileinsurance policy shall, at the time of issue thereof, also issue and de-liver to the named insured a motor vehicle liability insurance card.

. . .

s. 279 (4) No insurer shall prepare or issue a card under this sectionexcept as approved by the Registrar

11 What then is the gravamen of the offence charged? It is not that therespondent did not have motor vehicle liability insurance, which is a sep-arate offence with a much higher penalty under the Act. Indeed, as itturns out she did have liability insurance. Rather, the gravamen of theoffence is not carrying a card that establishes the existence of such in-surance. In other words, Section 28 (1.1.) is not only directed at the re-quirement of proof of insurance but also specifies the means of proof, i.e.by way of a carrying a card, not just any manner of proof. If it wereotherwise the section would simply require that the driver provide proofof liability insurance.

12 As I view it, part of the interpretative problem was the learned trialjudge’s reliance in her reasons, not only on the wording of the Section 28(1.1), but also ostensibly on the compendious description of the offencewritten on the traffic ticket, i.e. “Not carrying evidence of insurance”.Although those kinds of generalized descriptions are permitted by Sec-tion 10 (2) of the Provincial Offences Procedure Act, I agree with theappellant that those descriptions do not modify the underlying legisla-tion. Read as a whole the traffic ticket refers to the offence of “not carry-ing evidence of insurance in violation of Section 28 (1.1) of the MotorVehicle Act”. And, it is in Section 28 (1.1) that the means of proof isspecified, i.e. by a card.

13 This still begs the question. Does the word card capture one that iselectronically displayed?

14 I note that the term “card” is not defined in the Act. Therefore, I turnto a canon of statutory interpretation:

In order to determine the meaning of an undefined term in a statute, itis now well established that a court is to read the words making upthe term “in their entire context and in their grammatical and ordi-nary sense harmoniously with the scheme of the Act, the object ofthe Act, and the intention of Parliament”...

(R v. C.D.; R v. C.D.K., 2005 SCC 78at para. 27)


15 As a noun used in a context such as here, the word card appears con-sistently defined across dictionaries. For example:

Canadian Dictionary of the English Language, ITP Nelson, 1997:

A flat, usu. rectangular piece of stiff paper, cardboard, orplastic, esp.: a. ...... d. One bearing a person’s name andother information, used for purposes of identification orclassification ...

Dictionary.com

A usually rectangular piece of stiff paper, thin pasteboard, or plasticfor various uses, as to write information on or printed as a means ofidentifying the holder

Cambridge Dictionary.org

A small, rectangular piece of stiff paper or plastic with informationon it that shows who you are or allows you to do something.

Oxforddictionaries.com

A piece of thick, stiff paper or thin pasteboard, in particular one usedfor writing or printing on

16 I dare say that those definitions also accord with the plain meaning ofthe simple use of the word card as a noun in everyday life; except, per-haps, there would be less emphasis today on the quality of the documentmaterial that makes up the card. Indeed, when Section 28 (1.1.) is simplyread through it is this “ordinary meaning” of the word card that naturallyemerges:

The expression “ordinary meaning” is much used in statutory inter-pretation, but not in any consistent way. Sometimes it is identifiedwith dictionary meaning, sometimes with literal meaning and some-times with the meaning that results after the words to be interpretedare read in total context. Most often, however, it refers to the reader’sfirst impression meaning, the understanding that spontaneouslyemerges when words are read in their immediate context — in thewords of Gonthier J., “the natural meaning which appears when theprovision is simply read through” [Canadian Pacific Airlines v.Canadian Air Line Pilots Assn., [1993] 3 S.C.R. 724 at p. 735]. Thislast sense of “ordinary meaning” is the one adopted here.

(Ruth Sullivan, Sullivan and Driedger on the Construction of Stat-utes, Butterworths, 4th Ed at p. 21)

Viewed from this perspective, in “ordinary meaning” in the immediatecontext used would a photograph of a card or a ‘screen shot’ of a cardconstitute carrying a card under Section 28 (1.1.)? I do not think so. In


my opinion, it means an actual, not a virtual card; not one, for example,displayed as “an image on a cell phone screen”.

17 I also find that this corporeal or tangible meaning of the word is har-monious within the statutory scheme. The appellant’s argument is per-suasive:

It is noteworthy that the two sections in question [S. 28 (1.1.) and S.279 (1) (4)] specify that a “card” be issued, approved and carried.Nothing in these or other pertinent sections refer to copies, facsimilesor any other representation of proof of insurance.

In comparison, a registration certificate can be produced to a policeofficer in the form of a “photo static copy” as specified under section28 (2) (a) of the MVA, but not so for the insurance card under s. 28(2) (b) ...

(Appellant’s Submission at paras. 13-14; See also: R v. Marrocco,2012 ONCJ 535at paras. 26-29)

18 An additional indicator of the legislature’s intent to assign the corpo-real or tangible meaning to the word card is also found in that abovereferenced companion provision, Sub-Section 28 (2). This sub-sectionnot only sets out what is to be provided at the roadside to the policeofficer upon demand, but also dictates how it is to be given over and forwhat purpose:

The driver of a motor vehicle shall, upon demand of a peace officer,forthwith present and deliver into the peace officer’s hands, for ex-amination in detail by the peace officer,

(a) . . .

(b) a motor vehicle liability insurance card as required under sub-section (1.1.) with respect to that motor vehicle

(Emphasis Added)

19 To put it rhetorically, if the word card has the expanded meaning ar-gued for by the respondent, i.e. permits an electronically displayed for-mat, could it also have been the intention of the law makers to requirethat a private citizen turn over into the hands of the police upon demandsomething as personal and private as a hand held-computer, at least with-out any provision addressing privacy protection? What would be therange of risks for the citizen and, for that matter, for the peace officer?

20 The Court recognizes, of course, that in today’s lexicon there are so-called “electronic cards”. The Court also recognizes that in our techno-logical, virtual world, a legislative provision for only a “card” (as tradi-tionally understood) to be used as proof of something could be viewed by


many as archaic. However, nowhere in the Motor Vehicle Act is thereany reference to electronic means of proof, let alone provisions definingthose means or addressing the authenticity and integrity of such means(Compare e.g. Evidence Act, S.N.B., s. 47.1 regarding electronicallystored documents; See also: Canada Evidence Act, ss. 31.1, 31.3; Free-dom of Information and Protection of Privacy, S.C. 2000, s. 31 (1);Criminal Code, s. 841).

21 And it is not for the Courts to fill in or add to what may be perceivedby some as a legislative lacuna in the Motor Vehicle Act; not where themeaning of the statutory provision, alone and in context, is clear. Indeed,as touched on, there appears to be compelling reasons that could be ad-vanced for leaving the legislation as is. But, it is for the legislature tomake those choices.

22 Nor do I view this conclusion as inconsistent with Section 17 of theInterpretation Act, which requires that: “Every Act and regulation andevery provision thereof shall be deemed remedial, and shall receive suchfair, large and liberal construction and interpretation as best ensures theattainment of the object of the Act, regulation or provision”. This is be-cause Section 17 is not a carte blanche judicial licence to re-write legis-lation, as evidenced by the opening provision of that Act:

s. 1 (1) This Act extends and applies to every enactment and regula-tion except in so far as it

(a) is inconsistent with the intent or object of the enactment orregulation,

(b) would give to any word, expression or clause in the enact-ment or regulation an interpretation inconsistent with the con-text thereof ..., or

(c) . . .

(Emphasis added)

22 In the end, I am guided again by the Supreme Court: ...The best way for the courts to complete the task of giving effect tolegislative intention is usually to assume that the legislature meanswhat it says, when this can be clearly ascertained.

(R. v. Canadian Pacific Ltd., [1995] 2 S.C.R. 1028 (S.C.C.) at para.11)

23 In this case this means that, without more, a card is a card and only acard. In my respectful opinion the statutory provision means what it says.

R. v. Albert John J. Walsh, J. 43

VI. Disposition24 For these reasons I allow the appeal, set aside the acquittal and enter a

conviction and remit the matter back to the Provincial Court Judge forthe imposition of sentence.

25 I only add that I might have imposed sentence, except the respondentshould have the benefit of arguing for a ‘discharge without penalty’, asprovided by Section 55 of the Provincial Offences Procedure Act, giventhe circumstances of this case. However, it does not appear that thisCourt has the power to entertain such a disposition, only a ProvincialCourt Judge (See: R. v. Francis, 2010 NBQB 75 (N.B. Q.B.)).

26 Needless to say, it is for the Provincial Court Judge to decide uponthe appropriate sentence.

John J. Walsh, J.:

[TRADUCTION]

I. Introduction1 Le present appel a l’encontre d’un acquittement par procedure som-

maire pose une seule question: le port d’un telephone cellulaire qui af-fiche une carte d’assurance-responsabilite de vehicule a moteur prove-nant d’une piece jointe de courriel equivaut-il au port d’une carted’assurance-responsabilite de vehicule a moteur exige par la Loi sur lesvehicules a moteur?

2 Le ministere public interjette appel de l’acquittement de l’intimee a laCour provinciale. A la suite de l’interception de son vehicule a moteur, laconductrice intimee a ete inculpee de [TRADUCTION] « defaut deporter un justificatif d’assurance en violation du par. 28(1.1) de la Loisur les vehicules a moteur » au moyen d’un « billet de contravention decirculation ». Cette disposition est libellee comme suit:

Nul ne doit conduire un vehicule a moteur assujetti al’immatriculation en application de la presente loi sans porter, surlui-meme ou dans le vehicule, une carte d’assurance-responsabilitede vehicule a moteur delivree par un assureur et approuvee par leregistraire en vertu de l’article 279 a l’egard de ce vehicule a moteur.

(C’est moi qui souligne.)

3 Selon les conclusions de l’eminente juge de la Cour provinciale,l’intimee avait une telle carte avec elle, mais sous forme electronique, car


elle etait affichee sur son « telephone ». La juge l’a acquittee, declarantque cela satisfaisait aux exigences de la Loi.

II. Questions en litige4 Le ministere public soutient que l’eminente juge de la Cour

provinciale a commis plusieurs erreurs de droit connexes. A mon avis,ces divers moyens sont contenus dans les deux premiers qui sont enoncesdans l’avis d’appel:

[TRADUCTION]

a. en interpretant incorrectement le par. 28(1.1) de la Loi sur lesvehicules a moteur;

b. en interpretant incorrectement la nature precise de l’infractionreprochee, formulee dans le libelle prescrit utilise en applicationde l’annexe A du Reglement general — Loi sur la procedure ap-plicable aux infractions provinciales, comme le permettent les al.10(1)b) et (2)a) de la Loi sur la procedure applicable aux infrac-tions provinciales[.]

III. Preuve presentee au proces5 L’intimee a ete arretee pour exces de vitesse. L’agent de police lui a

demande ses « documents ». Selon l’agent, l’intimee a d’abord ete inca-pable de trouver sa preuve d’assurance, mais elle lui a ensuite presenteune « carte d’assurance » qui etait expiree. Il a exerce son pouvoir discre-tionnaire en lui decernant un billet de contravention de circulation(comme je l’ai indique) visant uniquement l’assurance et non l’exces devitesse. En contre-interrogatoire, l’agent a nie que l’intimee ait tente delui montrer en bordure de la route son telephone contenant une preuved’assurance sous forme d’un courriel qu’elle avait recu auparavant de sasociete d’assurance.

6 L’intimee a temoigne que quelque temps avant le jour ou elle a etearretee, elle avait appele sa societe d’assurance pour obtenir une nouvellecarte d’assurance parce qu’elle s’etait rendu compte que sa [TRADUC-TION] « bonne carte d’assurance n’etait pas dans [s]on camion ». Selonl’intimee, la societe d’assurance lui a dit qu’elle la lui enverrait par laposte. Elle a demande a l’assureur de la lui envoyer par courriel en at-tendant, au cas ou elle en aurait besoin, parce qu’elle n’etait pas a lamaison; elle etait a Moncton et visitait ses filles. Elle l’a recue dans sontelephone sous forme de piece jointe a un courriel, mais elle n’a pas pul’imprimer parce qu’elle n’avait pas acces a une imprimante. L’intimee a


egalement temoigne qu’elle avait dit a l’agent qu’elle avait sa carted’assurance temporaire dans son telephone sous forme electronique,[TRADUCTION] « mais il n’a pas voulu la regarder ». La piece jointeelectronique a ete imprimee et deposee en preuve au proces. Ce docu-ment imprime s’intitule [TRADUCTION] « Carte-certificat d’assurance-responsabilite temporaire »; il a ete delivre par Certas, CompagnieD’assurances Auto et Habitation, et est entre en vigueur la veille du jourou l’intimee a ete arretee.

IV. Les motifs de la decision de la juge de la Cour provinciale7 L’eminente juge de la Cour provinciale a accepte tacitement le

temoignage de l’intimee en concluant que le ministere public n’avait pasprouve qu’elle avait commis l’infraction reprochee. Voici ses motifs:

[TRADUCTION]

Mme Albert est inculpee de l’infraction prevue au par. 28(1.1) de laLoi sur les vehicules a moteur. Me Savoie a lu cette disposition de laLoi sur les vehicules a moteur, que je paraphrase: Nul ne doit con-duire un vehicule a moteur sans porter, sur lui-meme ou dans levehicule, une carte d’assurance-responsabilite delivree par un as-sureur. J’ai laisse quelques mots de cote, mais c’est en gros ce que dit... ce que dit l’article. Le paragraphe 28(2) dit que sur demande d’unagent de la paix, le conducteur d’un vehicule a moteur doit presentera l’agent de la paix et lui remettre une carte d’assurance-respon-sabilite de vehicule a moteur telle qu’exigee en vertu du paragrapheque je viens de lire.

Or, le ministere public soutient que techniquement, l’infraction a eteprouvee, car elle n’avait pas d’original a presenter et n’avait pas nonplus de photocopie.

Mais, chose interessante, l’accusation inscrite sur le billet de contra-vention qui a ete remis a Mme Albert indique le defaut de porter unjustificatif d’assurance, en violation du par. 28(1.1). Or, mon inter-pretation de ce paragraphe m’amene a conclure que Mme Albert con-duisait le vehicule a moteur ce jour-la. C’etait le 21 septembre 2015ce jour-la, et j’admets qu’elle avait dans son ordinateur la piece D-1,intitulee Carte-certificat d’assurance-responsabilite temporaire, deCertas, Compagnie D’assurances Auto et Habitation, et ce document,qu’elle dit avoir imprime a partir de son telephone, contient les ren-seignements qu’on s’attendrait a voir sur ce qu’on appelle une carted’assurance-responsabilite: le nom de l’agent, le vehicule assure, lenumero de police, la date de prise d’effet et ainsi de suite.


Alors, le paragraphe prescrit que le conducteur doit porter, sur lui-meme ou dans le vehicule, une carte d’assurance-responsabilite de-livree par un assureur. Or, Me Savoie soutient que le libelle de la Loisur les vehicules a moteur n’a peut-etre pas suivi l’evolution de latechnologie. Bon, le ministere public doit prouver hors de tout douteraisonnable chacun des elements de l’accusation portee contre Mme

Albert, et je ne suis pas convaincue qu’il l’ait fait, car je conclus queson temoignage au sujet du port du... ou de ce qui est presentecomme une carte d’assurance de vehicule a moteur dans le telephonequ’elle avait en main permettrait de soutenir qu’elle etait portee parla conductrice du vehicule a moteur. Autrement dit, je conclus que ceque Mme Albert devait presenter a l’agent ce jour-la pourrait etre con-sidere comme une preuve d’assurance-responsabilite de vehicule amoteur, et je conclus que le ministere public n’a pas prouve sespretentions hors de tout doute raisonnable, et je rejette l’accusation.


(Transcription, aux p. 22 et 23)

V. Analyse juridique8 Les questions soulevees en appel visent une interpretation legislative,

une question de droit. En pratique, l’eminente juge de la Courprovinciale a interprete la disposition de la Loi sur les vehicules a moteurselon laquelle tout conducteur doit porter, sur lui-meme ou dans levehicule a moteur, une carte d’assurance-responsabilite de vehicule amoteur comme etant assez large pour inclure l’affichage electroniqued’une telle carte. J’exprime ici mon respectueux desaccord.

9 Souvenons-nous de la disposition de la Loi qui cree l’infraction dontl’intimee a ete inculpee:

Par. 28(1.1.) Nul ne doit conduire un vehicule a moteur assujetti al’immatriculation en application de la presente loi sans porter, surlui-meme ou dans le vehicule, une carte d’assurance-responsabilitede vehicule a moteur delivree par un assureur et approuvee par leregistraire en vertu de l’article 279 a l’egard de ce vehicule a moteur.


10 La mention de l’art. 279 renvoie a ce qui suit: Par. 279(1) Tout assureur, lorsqu’il etablit une police d’assurance au-tomobile pour un proprietaire ou un conducteur, doit en meme tempsetablir et remettre a l’assure nommement designe dans la police unecarte d’assurance-responsabilite de vehicule a moteur.

[...]


Par. 279(4) Un assureur ne doit preparer ou etablir une carte en appli-cation du present article que dans les conditions approuvees par leregistraire.

11 Alors, quelle est l’essence de l’infraction reprochee? Ce n’est pas quel’intimee n’avait pas d’assurance-responsabilite de vehicule a moteur, cequi est une infraction distincte entraınant une penalite beaucoup pluslourde aux termes de la Loi. De fait, il se trouve qu’elle avait bel et bienune assurance-responsabilite. L’essence de l’infraction est plutot le faitde ne pas porter une carte etablissant l’existence d’une telle assurance.Autrement dit, le par. 28(1.1.) ne vise pas seulement l’exigence d’unepreuve d’assurance, mais il precise aussi la methode de preuve, a savoirle fait de porter une carte et non n’importe quel moyen de preuve. Si cen’etait pas le cas, le paragraphe exigerait simplement que le conducteurfournisse une preuve d’assurance-responsabilite.

12 A mon avis, le probleme d’interpretation provenait en partie du faitque l’eminente juge du proces, dans ses motifs, s’est appuyee non seule-ment sur le libelle du par. 28(1.1), mais visiblement aussi sur la descrip-tion succincte de l’infraction qui a ete donnee dans le billet de contraven-tion de circulation: [TRADUCTION] « defaut de porter un justificatifd’assurance ». Bien que de telles descriptions generalisees soientpermises par le par. 10(2) de la Loi sur la procedure applicable aux in-fractions provinciales, je souscris aux propos de l’appelante selon les-quels ces descriptions ne modifient pas la legislation sous-jacente. Si onle lit globalement, le billet de contravention de circulation fait etat del’infraction de [TRADUCTION] « defaut de porter un justificatifd’assurance en violation du par. 28(1.1) de la Loi sur les vehicules amoteur ». C’est egalement le par. 28 (1.1) qui specifie la methode depreuve, c’est-a-dire une carte.

13 Une question demeure, cependant. Le mot carte inclut-il une carteaffichee sous forme electronique?

14 Je remarque que le mot « carte » n’est pas defini dans la Loi. Jem’appuie donc sur une maxime d’interpretation legislative:

Pour determiner le sens d’un terme non defini par la loi, il est mainte-nant bien etabli que le tribunal est tenu d’interpreter les mots qui lecomposent [TRADUCTION] « dans leur contexte global en suivantle sens ordinaire et grammatical qui s’harmonise avec l’esprit de laloi, l’objet de la loi et l’intention du legislateur » [...]

(R c. C.D.; R c. C.D.K., 2005 CSC 78, au par. 27)


15 En tant que nom utilise dans un contexte tel que celui de l’espece, lemot carte semble etre defini de facon constante d’un dictionnaire al’autre. Par exemple:

Canadian Dictionary of the English Language, ITP Nelson, 1997:

[TRADUCTION]

Petit morceau, generalement rectangulaire, de papier ri-gide, de carton ou de plastique, particulierement: a. [...] d.qui porte le nom d’une personne et d’autres renseigne-ments, et qui est utilise a des fins d’identification ou declassification [...]

Dictionary.com

[TRADUCTION]

Morceau, generalement rectangulaire, de papier rigide, de cartonmince contrecolle ou de plastique utilise a des fins diverses, tellesque l’inscription ou l’impression de renseignements visant a en iden-tifier le possesseur.

Cambridge Dictionary.org

[TRADUCTION]

Petit morceau rectangulaire de papier rigide ou de plastique qui portedes renseignements montrant l’identite d’une personne ou lui permet-tant de faire quelque chose.

Oxforddictionaries.com

[TRADUCTION]

Morceau de papier epais et rigide ou de carton mince contrecolle,qu’on utilise en particulier pour y ecrire ou y imprimer quelquechose.

16 J’ose dire que ces definitions concordent egalement avec le sensordinaire du mot carte utilise simplement comme nom dans la vie quo-tidienne, sauf peut-etre qu’on insisterait moins aujourd’hui sur la qualitedu materiel utilise pour fabriquer la carte. De fait, a la simple lecture dupar. 28(1.1), c’est ce « sens ordinaire » du mot carte qui ressort naturel-lement:

[TRADUCTION]

L’expression « sens ordinaire » est souvent employee en interpreta-tion legislative, mais pas de facon uniforme. On l’assimile parfois ala definition donnee par le dictionnaire, parfois au sens litteral, etparfois au sens qui se degage d’une lecture des termes a interpreterdans leur contexte global. La plupart du temps, cependant, onl’associe a la premiere impression du lecteur, c.-a-d. au sens qui lui


vient spontanement lorsqu’il lit les termes dans leur contexte im-mediat — pour citer le juge Gonthier, « le sens naturel qui se degagea la simple lecture de la disposition ». [Conseil canadien desrelations de travail c. Quebecair, [1993] 3 R.C.S. 724, a la p. 735].Ce dernier sens de « sens ordinaire » est celui qui est adopte ici.

(Ruth Sullivan, Sullivan and Driedger on the Construction of Stat-utes, Butterworths, 4e ed., a la p. 21)

Selon ce point de vue, suivant le « sens ordinaire » dans le contexte im-mediat ou le mot est utilise, une photographie d’une carte ou la « captured’ecran » d’une carte constitue-t-elle le port d’une carte au sens du par.28(1.1)? Je ne pense pas. A mon avis, cela veut dire une carte reelle, pasvirtuelle; par exemple, cela ne veut pas dire une carte affichee comme[TRADUCTION] « image affichee sur un ecran de telephonecellulaire ».

17 Je conclus aussi que ce sens materiel ou tangible du mot s’harmoniseavec le regime legislatif. L’argument de l’appelante est convaincant:

[TRADUCTION]

Il est remarquable que les deux dispositions en question [par.28(1.1.) et par. 279(1) et (4)] specifient qu’une « carte » doit etredelivree, approuvee et portee. Dans ces dispositions ou les autres dis-positions pertinentes, on ne trouve aucune mention de copies, detelecopies ou d’autres representations d’une preuve d’assurance.

Par comparaison, un certificat d’immatriculation peut etre presente aun agent de police sous forme de « photocopie », comme le precisel’al. 28(2)a) de la Loi sur les vehicules a moteur, mais tel n’est pas lecas de la carte d’assurance aux termes de l’al. 28(2)b) [...]

(Memoire de l’appelante, aux par. 13 et 14; voir aussi R. c. Mar-rocco, 2012 ONCJ 535, aux par. 26 a 29.)

18 Une indication additionnelle de l’intention du legislateur d’attribuerun sens materiel ou tangible au mot carte se trouve aussi dans la disposi-tion voisine susmentionnee, le par. 28(2). Non seulement ce paragrapheprescrit ce qui doit etre presente sur demande a l’agent de police en bor-dure de la route, mais il specifie egalement comment cela doit etrepresente et a quelle fin:

Sur demande d’un agent de la paix, le conducteur d’un vehicule amoteur doit immediatement presenter a l’agent de la paix et luiremettre, pour verification detaillee par l’agent de la paix,

a) [...]


b) une carte d’assurance-responsabilite de vehicule a moteurtelle qu’exigee en vertu du paragraphe (1.1) a l’egard de cevehicule a moteur.


19 Pour poser la question de facon theorique, si le mot carte a le senselargi preconise par l’intimee, c’est-a-dire s’il permet une presentationsous forme d’affichage electronique, les legislateurs ont-ils pu avoirl’intention d’exiger qu’un particulier remette sur demande aux mains dela police quelque chose d’aussi personnel et prive qu’un ordinateur depoche, au moins sans aucune disposition traitant de la protection de la vieprivee? Quelle serait la gamme des risques pour le particulier, et memepour l’agent de la paix?

20 La Cour reconnaıt evidemment que dans le vocabulaired’aujourd’hui, il y a ce qu’on appelle des « cartes electroniques ». LaCour reconnaıt aussi que dans notre monde technologique et virtuel,beaucoup de gens pourraient considerer archaıque une disposition legis-lative prevoyant que seulement une « carte » (entendu au sens tradition-nel) peut etre utilisee comme preuve de quelque chose. Toutefois, dans laLoi sur les vehicules a moteur, on ne trouve aucune mention de moyensde preuve electroniques, sans parler de dispositions definissant cesmoyens ou traitant de l’authenticite et de l’integrite de tels moyens.(Comparer par exemple a la Loi sur la preuve, L.R.N.-B., art. 47.1, ausujet des documents conserves electroniquement; voir aussi la Loi sur lapreuve au Canada, art. 31.1 et 31.3, la Loi sur la protection des ren-seignements personnels et les documents electroniques, L.C. 2000, par.31(1), et le Code criminel, art. 841).

21 Et il n’appartient pas aux tribunaux de combler ce que certains pour-raient considerer comme une lacune legislative de la Loi sur les vehiculesa moteur, ou d’ajouter a cette loi, lorsque le sens de la disposition legis-lative, isolement et dans son contexte, est clair. De fait, comme on l’amentionne, il semble qu’on pourrait apporter des arguments convaincantspour laisser la loi telle qu’elle est. Mais c’est au legislateur qu’il appar-tient de faire de tels choix.

22 Je n’estime pas non plus que cette conclusion soit incompatible avecl’art. 17 de la Loi d’interpretation, qui prescrit ce qui suit: « Toute loi,tout reglement et toute disposition de ceux-ci sont reputes reparateurs etdoivent faire l’objet de l’interpretation large, juste et liberale, la pluspropre a assurer la realisation de leurs objets. » Il en est ainsi parce que


l’art. 17 n’est pas une liberte totale accordee aux juges de reecrire leslois, comme le montre bien la disposition initiale de cette Loi:

Par. 1(1) La presente loi s’etend et s’applique a tout texte legislatif eta tout reglement, sauf dans la mesure ou elle

a) est incompatible avec le sens ou l’objet du texte legislatif oudu reglement,

b) donnerait a quelque mot, expression ou disposition du textelegislatif ou du reglement une interpretation incompatibleavec le contexte [...] du texte legislatif ou du reglement, ou

c) [...]


23 Au bout du compte, c’est encore la Cour supreme qui m’inspire: [...] la meilleure facon pour les tribunaux de mener a terme la tachede donner effet a l’intention du legislateur consiste habituellement apresumer que le legislateur entend dire ce qu’il dit, lorsque cela peutetre clairement etabli.

(Ontario c. Canadien Pacifique Ltee, [1995] 2 R.C.S. 1031, au par.11)

24 En l’espece, cela veut dire tout bonnement qu’une carte est une carte,et rien qu’une carte. Avec egards, je suis d’avis que la disposition legisla-tive veut dire ce qu’elle dit.

VI. Dispositif25 Pour ces motifs, j’accueille l’appel, j’annule le verdict d’acquittement

et j’inscris une declaration de culpabilite, et je renvoie l’affaire a la jugede la Cour provinciale pour qu’elle inflige la peine.

26 J’ajoute seulement que j’aurais pu imposer la peine, sauf quel’intimee devrait avoir la possibilite de plaider en faveur d’une liberationsans l’imposition d’une peine, comme le prevoit l’art. 55 de la Loi sur laprocedure applicable aux infractions provinciales, etant donne les cir-constances de l’espece. Toutefois, il semble que le pouvoir d’envisagerun tel dispositif n’appartient pas a notre Cour, mais seulement a un jugede la Cour provinciale (voir R. c. Francis, 2010 NBBR 75).

27 Il va sans dire que c’est a la juge de la Cour provinciale qu’il appar-tient de decider la peine appropriee.

Appeal allowed.


[Indexed as: R. v. Didechko]

Her Majesty the Queen, Crown and Kenneth Didechko,Accused

Alberta Court of Queen’s Bench

Docket: Edmonton 130836984Q1

2016 ABQB 376

A.W. Germain J.

Heard: May 24, 25, 2016; June 2, 3, 6, 20, 27, 2016

Judgment: July 4, 2016

Criminal law –––– Offences — Failing to stop at scene of accident — Ele-ments — Care, charge or control –––– Deceased was on driving portion ofstreet and was struck by vehicle which was owned by car dealership and hadbeen assigned to accused as his demonstration vehicle — Vehicle did not stopand was abandoned off road — Accused was charged with obstructing justice,unlawfully causing bodily harm, failure to stop at scene of accident and danger-ous driving causing death — Accused convicted of failure to stop at scene ofaccident — Accused was driving vehicle at time that deceased was struck fa-tally — Accused’s claim that he was not driving or in vehicle at time of collisionwas not believed — Accused’s statements were internally inconsistent and wereexternally inconsistent with other technical scientific evidence that was over-whelming and reliable — Accused’s evidence could not raise reasonable doubtbecause it clashed so greatly and on material particulars with other forensic evi-dence — When cell tower tracking was factored and considered along with GPStracking, inference could be drawn that led to proof beyond reasonable doubtthat accused was in vehicle few seconds before collision and few seconds af-ter — Routing of accident, parking of vehicle and its later delivery to locationwhere it was abandoned, and cell phone call history were completely inconsis-tent with anybody other than accused driving vehicle — Accused had duty tostop and render assistance to deceased and failed to do so — Described impactin accident, which threw deceased over entire vehicle and caused extensive dam-age to vehicle, meant that accused had to have known either that he killed de-ceased or that he seriously injured her.

Criminal law –––– Offences — Misleading justice — Obstructing justice —Elements — Course of justice –––– Deceased was on driving portion of streetand was struck by vehicle which was owned by car dealership and had beenassigned to accused as his demonstration vehicle — Vehicle did not stop andwas abandoned off road — Accused was charged with obstructing justice, un-lawfully causing bodily harm, failure to stop at scene of accident and dangerous

R. v. Didechko 53

driving causing death — Accused convicted of obstructing justice — Accusedwas found to be driver of vehicle that hit deceased — In attempt to evade liabil-ity for that misconduct accused first fled scene, then in attempt to confuse anddivert police investigation, reported that vehicle was stolen and took steps torelocate vehicle to add plausibility to story — Accused had knowledge of truestate of affairs and intentionally made false complaint and allegations in attemptto obstruct course of justice in criminal investigation — Canadian cases ap-proved common sense approach that this level of obstruction to pervert or ob-struct or defeat course of justice could also apply in investigative stage.

Criminal law –––– Offences — Dangerous driving causing death — Miscel-laneous –––– Deceased was on driving portion of street and was struck by vehi-cle which was owned by car dealership and had been assigned to accused as hisdemonstration vehicle — Vehicle did not stop and was abandoned off road —Accused was charged with obstructing justice, unlawfully causing bodily harm,failure to stop at scene of accident and dangerous driving causing death — Ac-cused was found not guilty of dangerous driving causing death — There waslittle, if any, evidence here that vehicle was being operated in dangerous way —Witness who observed deceased being struck was unable to say that vehicle hadbeen speeding or breaching any other observable rule of road prior to thatpoint — Vehicle’s onboard GPS system reflected only modestly elevatedspeed — There was some evidence that accused had consumed alcohol, howeverit was difficult to conclude that Crown had proven beyond reasonable doubt thataccused was impaired by alcohol — Accused was on his cell phone just beforecollision, however based on phone records that call ended approximately sixseconds before actual collision and it was unclear whether this modern vehiclehad hands-free phone system — Although accused’s evidence was not believedand did not raise reasonable doubt, Crown had still failed to prove beyond rea-sonable doubt accused was guilty of dangerous driving.

Cases considered by A.W. Germain J.:

R. v. Beatty (2008), 2008 SCC 5, 2008 CarswellBC 307, 2008 CarswellBC 308,57 M.V.R. (5th) 1, [2008] A.C.S. No. 5, [2008] S.C.J. No. 5, 54 C.R. (6th) 1,228 C.C.C. (3d) 225, 76 B.C.L.R. (4th) 201, [2008] 5 W.W.R. 1, 289 D.L.R.(4th) 577, 371 N.R. 119, [2008] 1 S.C.R. 49, 251 B.C.A.C. 7, 420 W.A.C. 7,179 C.R.R. (2d) 247 (S.C.C.) — referred to

R. v. Didechko (2015), 2015 ABQB 642, 2015 CarswellAlta 1902, [2015] A.J.No. 1103, 85 M.V.R. (6th) 193, 27 Alta. L.R. (6th) 290 (Alta. Q.B.) —considered

R. v. Lifchus (1997), 1997 CarswellMan 392, 1997 CarswellMan 393, 9 C.R.(5th) 1, 118 C.C.C. (3d) 1, 216 N.R. 215, 150 D.L.R. (4th) 733, 118 Man. R.(2d) 218, 149 W.A.C. 218, [1997] 3 S.C.R. 320, [1997] 10 W.W.R. 570,[1997] S.C.J. No. 77 (S.C.C.) — referred to



R. v. W. (D.) (1991), 3 C.R. (4th) 302, 63 C.C.C. (3d) 397, 122 N.R. 277, 46O.A.C. 352, [1991] 1 S.C.R. 742, 1991 CarswellOnt 80, 1991 CarswellOnt1015, [1991] S.C.J. No. 26, EYB 1991-67602 (S.C.C.) — followed


Criminal Code, R.S.C. 1985, c. C-46Generally — referred tos. 139(2) — considereds. 249 — considereds. 249(4) — considereds. 252(1)(a) — considereds. 252(1.3) [en. 1999, c. 32, s. 1] — considereds. 252(2) — considereds. 253 — referred tos. 269 — considered

TRIAL of accused charged with obstructing justice, unlawfully causing bodilyharm, failure to stop at scene of accident and dangerous driving causing death.

Chady F. Moustarah, Kelsey Selbee, for AccusedJames E. Stewart, for Crown

A.W. Germain J.:

A. Introduction1 Mr. Kenneth (“Ken”) Didechko is charged under the Criminal Code,

RSC 1985, c C-46 with:

1. giving a false statement: Criminal Code, s 139(2);

2. unlawfully causing bodily harm: Criminal Code, s 269;

3. failure to stop at a scene of an accident resulting in death: Crimi-nal Code, s 252(1.3); and

4. dangerous operation of a motor vehicle causing death: CriminalCode, s 249(4).

The particulars of the indictment are set out in Schedule A.2 Mdm. Justice F. Schutz, the formerly assigned case management

judge, ruled on certain admissibility issues relating to evidence obtainedthrough warrants and production orders, including R. v. Didechko, 2015

R. v. Didechko A.W. Germain J. 55

ABQB 642, 27 Alta. L.R. (6th) 290 (Alta. Q.B.). Upon Justice Schutz’sappointment to the Alberta Court of Appeal, it fell to me to conduct theactual trial. Her pretrial rulings bind me as the trial judge, so there wererelatively few admissibility issues that arose during the trial.

3 At the conclusion of argument Crown counsel indicated that theywere not seeking a conviction on Count 2: Criminal Code, s 269. There-fore, this count will not again be mentioned.

B. Background Facts4 The background to this case is not greatly in dispute, so to better ar-

ticulate the position of Crown and defence, I begin there.5 On October 14, 2012, Ms. Faith Jackson, an 18-year-old female, was

on the driving portion of 82nd St. in Edmonton around the intersection of141st Ave. At 3:06 AM she was struck by a 2012 Dodge Charger [the“vehicle”] [Exhibit 3: Agreed Statement of Facts]. This vehicle wasowned by an Alberta car dealership, and had been assigned, the eveningbefore, to Mr. Ken Didechko as his demonstration vehicle. The vehiclewas located and identified about nine hours later at 11:30 AM by a civil-ian and reported to the Edmonton Police Service [“EPS”],[Exhibit 3].The vehicle had been abandoned off the road, in North East Edmontonon Fort Road near Meridian Street.

6 Defence has admitted that the vehicle assigned to Mr. Didechko wasthe vehicle that struck Ms. Jackson. The critical factual issue is thereforewhether Mr. Didechko was driving that vehicle when Ms. Jackson wasstruck.

7 The actual location of Ms. Jackson on 82nd St. is also in some contro-versy, but it appears clear that she was on the driving portion of the curblane going southbound. What she was doing there and how long she hadbeen there was difficult to determine. Her visible clothing consisted ofblue jeans and a lighter ‘hoodie jacket’. Her male companion (not struck)was incapacitated due to alcohol consumption. The vehicle which struckher was moving from north to south. An eyewitness observed a momen-tary flash of brake lights, but the vehicle did not otherwise stop.

8 By coincidence, two members of Edmonton’s Fire Department (alsotrained in first response medicine) were just finishing a call at the cornerof 82nd St. and 141st Ave. Both firefighters heard what they described asa thump, and one firefighter saw Ms. Jackson thrown over the vehicle.These two firefighters raced to Ms. Jackson’s aid and arrived within 20seconds of the collision. Despite their best effort and the expeditious arri-


val of a fully equipped ambulance, Ms. Jackson succumbed to her inju-ries a short time later at an Edmonton hospital.

9 At the time of the collision 82nd St. was dry, bare, and in good condi-tion. The vehicle traffic on 82nd St. at that time was light. There were noatmospheric conditions obscuring the road. Although nighttime, thestreetlights on 82nd St. were functioning. The two first responders,kneeling on the road assisting Ms. Jackson were, despite the road andlight conditions, cautious about getting struck by oncoming vehicles, sothey directed the officer in charge of their fire truck to park it on 82ndSt., to provide a protective barricade for them.

10 It is therefore beyond question and little in dispute that the Crown hasproven beyond a reasonable doubt that whoever was driving the DodgeCharger at the time failed to stop and render appropriate assistance asrequired by the Criminal Code of Canada. It is beyond doubt that thedriver of that vehicle is at least guilty of the basic offense of ‘hit-and-run’ (Criminal Code, s 253)

11 But who was the driver?

C. The Parties’ Positions

1. The Crown12 The Crown asserts that they have proven beyond a reasonable doubt

that Mr. Didechko was the driver at the time of the fatal collision. Theybase this on technological forensic evidence consisting of the globalpositioning system in the vehicle, the utilized transmission tower loca-tions, and context of various calls and text messages made from Mr.Didechko’s phone. The Crown emphasizes inconsistencies between thisobjective evidence, and Mr. Didechko’s claim made to the police that thevehicle was stolen and that the person who stole the vehicle was thedriver in the accident. The Crown asks me to reject the defence evidenceand come to the only possible conclusion: that Mr. Didechko is guiltybeyond a reasonable doubt.

13 The Crown asserts that they have proven that Mr. Didechko:

1. was driving in a dangerous manner through a combination ofspeed and alcohol consumption when the accident occurred,

2. Left the scene of an accident, and falsified a report to the policewhen he reported the vehicle was stolen.

The Crown also points out that even if Mr. Didechko is found to not bedriver of the vehicle, his falsehoods proven by comparison to the vehicle


global positioning system and the phone records, relating to the theft ofthe vehicle, prove him guilty beyond a reasonable doubt of the obstruc-tion charge.

2. The Defence14 The defence made no specific submission on count one: the obstruc-

tion of justice charge, except the reminder to the court that Mr. Didechkomust be proven guilty beyond a reasonable doubt. On the two substantialcounts for which learned defence counsel made extensive submissions,the defence points out that the Crown must prove beyond a reasonabledoubt that Mr. Didechko was the driver of the vehicle before he can beconvicted of leaving the scene or dangerous driving; and argues that theCrown has failed to do so. The cell phone tracking is potentially inaccu-rate, inconclusive and too unreliable to amount to circumstantial evi-dence. The statement to the police in the afternoon following the colli-sion is not a false alibi, nor should it be considered incriminating post-offence conduct as that statement was not unequivocal.

15 The defence’s fallback position is that no matter who was driving, theevidence of dangerous driving falls short of the criminal threshold of adeliberate and intentional deviation from the normal standards. There isno evidence of excessive speed, or of excessive consumption of alcohol.When one adds to that the fact that Ms. Jackson was on the driving por-tion of the road at the time she was struck and not in an intersection,there can be no finding of dangerous driving.

D. Legal Overview16 Mr. Didechko is entitled to the benefit of the doubt, and he must be

acquitted if there is any reasonable doubt whatsoever in the Crown’s caseagainst him. It is not enough he is likely guilty, or probably guilty. TheCrown must prove him guilty beyond a reasonable doubt: R. v. Lifchus,[1997] 3 S.C.R. 320 (S.C.C.) at paras 30-31, 39, (1997), 150 D.L.R. (4th)733 (S.C.C.).

17 ‘Proof beyond a reasonable doubt’ is not to a standard of absolutecertainty, as that standard is impossibly high. This case is highly factu-ally driven, and the critical fact about whether Mr. Didechko was drivingthe vehicle when it hit Faith Jackson must be proven beyond a reasonabledoubt.

18 The case is one we identify as a circumstantial evidence case. Thereis absolute proof of the vehicle which struck Ms. Jackson. But who was


driving at the time is based on circumstantial evidence. Much has beenwritten on circumstantial evidence, but for our purposes, an acceptableoverview is found in Sidney Lederman et al, The Law of Evidence inCanada, 4th ed (Markham: LexisNexis, 2014):

2.81 Circumstantial evidence in the criminal context is any circum-stance which may or may not tend to implicate the accused in thecommission of the offense for which the accused is charged. For ex-ample, an inference of culpability may be drawn from a “conscious-ness of guilt” (now referred to as “post-offense conduct”) in the factthat the accused fled from the scene of a crime, ... gave a false alibi,destroyed evidence, or lied to the police; or that the accused had amotive or opportunity to commit the crime.

19 Circumstantial evidence, at its heart requires that one fact be drawnfrom a series of other facts and this case is no different. The Crownseeks:

first, to use the activity of certain phone towers as evidence that Mr.Didechko’s phone was in the area of the tower at a time it was beingused for a call.

Second, the content and destination of the calls to create an inferencethat the phone was with Mr. Didechko;

And third a combination of the phone calls and the GPS coordinatesfrom the vehicle

to prove that Mr. Didechko was driving the vehicle when it struck Ms.Jackson. The defence urges me not to convict on this circumstantial evi-dence because it is not inconsistent with any other rational conclusion.

20 Even if the Crown proves that Mr. Didechko was driving the vehiclewhen Ms. Jackson was struck, that would make him guilty of the basiccharge of hit-and-run, but before he can be convicted of ‘hit and runwhen death occurred’, as described in this indictment, the Crown mustalso prove either that when he left the scene he knew:

1. Ms. Jackson was dead, or

2. Ms. Jackson was injured to such an extent that he was willfullyblind or reckless as to whether death ensued or not.

21 There is another legal principle that must be applied where Mr.Didechko gave evidence that denied wrongdoing. Here that evidencecomes before the court because the Crown introduced in evidence one ormore of Mr. Didechko’s statements to police. In such cases, the SupremeCourt of Canada has directed me in a case called R. v. W. (D.), [1991] 1S.C.R. 742, 63 C.C.C. (3d) 397 (S.C.C.) [“W(D)”] that I should conduct


a three-part analysis of Mr. Didechko’s statements that he wasuninvolved with the collision and Ms. Jackson’s death:

1. If I believe the evidence of the accused and his denial of wrongdo-ing, he must be acquitted.

2. Even if I do not believe the accused’s evidence denying responsi-bility, if that evidence at least raises a reasonable doubt, then hemust get the benefit of that doubt and must be acquitted.

3. If I do not believe the accused and his evidence does not raise areasonable doubt, then I must still consider all the evidence heardat trial, which I accept, to ensure that the Crown has proven Mr.Didechko guilty beyond a reasonable doubt.

22 The purpose of the W(D) analysis is to remind trial judges that simplybecause they may not believe the person on trial, they should not reversethe burden of proof and convict the accused because they do not believehim. The W. (D.) procedure also protects the accused from a ‘credibilitycompetition’ between a Crown witness and the accused. A trier of factmust determine whether the Crown has proven the case beyond a reason-able doubt. The individual on trial does not have to prove his innocence.This applies to all of the charges Mr. Didechko is facing.

23 There are at least two alternate factual versions in play in this case.The first is that after Mr. Didechko parked at his father’s house someoneelse took his vehicle and caused the death of Ms. Jackson. That is hisversion! The second alternative is that Mr. Didechko was driving his as-signed vehicle at the time it struck Ms. Jackson, and then spent the nextfew hours working out a cover-up. That is the Crown’s theory.

F. Factual Analysis24 Before applying the legal framework of Canadian criminal law to this

case, it is my duty to find the facts upon which my legal discussion willbe based. Many facts are not greatly in dispute, and some were admittedduring the course of the trial. Some have already been referred to. How-ever, it is useful to start with the timeline. This timeline is developed inisolation to the time line created by the GPS [“global positioning system]records (see para 39).


1. Timeline

Time Event Notes

Saturday, October13, 2012

6:30 PM to 7:00 PM Approximate time Admitted by Mr.Mr. Didechko leaves Didechko in voluntarythe car dealership as statement of Octoberthe driver of the 14, 2012, line 463.2012 Dodge Charger Also by evidence ofthat struck Ms. Jack- Mr. Trevor D’Haeneson. from the dealership.

9:30 PM to 10:00 Mr. Didechko leaves Admitted by Mr.PM a south side restau- Didechko in voluntary

rant, accompanied by statement of Octoberhis brother, Tom 14, 2012, line 508.Didechko.

11:00 PM Approximate time, Admitted by Mr.Mr. Didechko leaves Didechko in voluntaryJox Sports Bar, ac- statement of Octobercompanied by his 14, 2012 combined inbrother. Mr. lines 1127, 1136,Didechko allows his 1254. Also Exhibit 30friends to test drive identifying the inter-the Charger to their vening drivers.next location.

10:56 PM Mr. Didechko enters Time and videoRichard’s Pub, a li- records from the bar,censed premise at capturing Mr.121 St. and 161 Didechko’s arrival.Ave., NW.

Sunday, October 14,2012


Time Event Notes

1:59 AM Last call at Richard’s Time records from thePub — Mr. Didechko bar and video captureis still present, but is show Mr. Didechko,seen leaving through leaving the bar. Note:a side door. all the time record on

the actual bar videosare in error. I con-clude that basis thatall Richard’s Pubtime stamps are onehour behind the actualtime.

3:06 AM Ms. Jackson is struck This time is admittedon 82nd St. and (Exhibit 3: Agreedaround 141st Ave. Statement of Facts).

10:30 AM Mr. Didechko reports Evidence of salesto the sales manager manager. Mr.at the car dealership Didechko believesthat the vehicle has this time may havebeen stolen. been later.

11:29 AM Mr. Didechko calls Transcript call time,Edmonton non-emer- tape-recorded call.gency police line toreport the stolen ve-hicle from the park-ing lot at Richard’sPub.

11:30 AM Witness reports locat- Evidence of Cst. R.ing the vehicle off Ross, and Exhibit 3Fort Road. Police at-tend shortly thereaf-ter and confirm thelocation of the DodgeCharger along FortRoad near MeridianRoad.


Time Event Notes

11:39 AM Mr. Didechko calls Transcript call time,Edmonton non-emer- tape-recorded call.gency police line toreport the vehiclewas stolen from hisfather’s home and tosupply additional de-tail.

12:09 PM Third call toEdmonton Police re-port line, full serialnumber supplied.

2:22 PM Call to EPS reportline receives advicepolice on their wayto see Mr. Didechko.

3:00 PM (approxi- Police attended Mr.mate) Didechko’s home and

ask Mr. Didechko tocome to the policestation for a volunta-ry statement.

3:10 PM to 4:58 PM Mr. Didechko pro- Evidence of Detectivevides a voluntary Weaver, and time re-cautioned and Char- cord of video state-ter-compliant statement.ment in which hediscusses his reportof a stolen vehicle,but is also advisedthat he may becharged with variouscriminal offenses in-cluding hit-and-run.


Time Event Notes

July 18, 2013 Mr. Didechko is ar-rested and chargedwith the offensesbefore the court.

2. Mr. Didechko’s Evidence25 Mr. Didechko’s evidence and his implied denial that he was the

driver of a motor vehicle at the time of the collision come from severalsources. The first sources are the initial ‘stolen vehicle’ reports made tothe EPS complaint line (Exhibits 16 and 16A). The next is the statementhe gave to the police when he first was interviewed on October 14, 2012.

26 On October 14, 2012 Mr. Didechko was allowed to recap the activi-ties of the previous night. This was a relaxed and smooth flowing state-ment and its admission is not challenged. In his initial report to theEdmonton police phone line Mr. Didechko indicated that the vehicle wasstolen from the Richard’s Pub parking lot (a strip mall at 121 St. and 161Ave., NW). Mr. Didechko quickly resiled from that position. By the timeMr. Didechko next phoned the police he reported the vehicle stolen fromhis father’s house (5518 145A Avenue NW). This is a prominent addressin this investigation and will be referred to frequently as the “145A loca-tion”. The detail given by Mr. Didechko indicated that several people,including strangers, came and went in his father’s home the morning ofOctober 14, 2012. Mr. Didechko told police he left the vehicle’s keys onthe kitchen table, went downstairs, and watched television to around 2:30AM, or it “could be a little later” (October 14, 2012 interview, line1944). Mr. Didechko concluded someone took the vehicle from his fa-ther’s driveway. Mr. Didechko in his statement to police indicates hepassed out (October 14, 2012 interview, line 1954).

27 During that statement Mr. Didechko confirmed that in three separatecommercial locations he had consumed a limited amount of alcohol onSaturday evening. However, once at his father’s home he consumedmore vodka, since he has no intention to drive again that night.

28 Mr. Didechko’s statement goes on to indicate that when he woke uparound noon, he took his brother’s vehicle to his home, a 15 minutedrive. He arrived there between 12:15 to 12:30 PM (October 14, 2012interview, line 1996). Mr. Didechko then claims to have called hisbrother asking his brother to go with him to get the vehicle from Rich-ard’s Bar, only to be told by his brother that the Dodge charger was at


his father’s house. Mr. Didechko indicates that he panicked because thatwas the first time he realized the vehicle was not where his brother sug-gested that it was.

29 Mr. Didechko reports that at this point he made the first call to theEPS non-emergency line.

3. The Technological Forensic Evidence30 Modern technology has changed the way in which police investigate

crime. This case is an example. Two elements of technological forensicswere utilized in this case. The first is the modern technology of globalpositioning navigation; the second the technology by which personal de-vices, such as cell phones, seek and deliver messages through specificand identifiable cell phone communications systems towers, which arelocated in a larger coverage area. I will deal with the evidence providedby each of these in this segment of my factual analysis.

a. Global Positioning System Data31 The vehicle had a state-of-the-art global positioning system [“GPS”]

installed within it, manufactured by a world-renowned company -Garmin. Garmin makes sophisticated global positioning systems for bothaircraft and vehicles. Global positioning utilizes satellites revolvingaround the earth and geo-synchronized with the Earth, so that althoughthey are moving, they move with the Earth and appear stationary in rela-tion to the Earth. The onboard GPS equipment picks up signals fromthese orbiting satellites and uses hardware and software to pinpointwhere the unit is at any time in relation to the geographic features of theEarth. This feature allows the equipment to assist with real time naviga-tion, but also, when are properly equipped and programmed, will createand retain within the saved and memorized data of the unit a ‘bread-crumb’ trail of where that unit has been and when. This travel history,including speeds averaged between points, can be extracted andreviewed.

32 Mr. Scott Burgett, a qualified Garmin engineering expert, gave evi-dence which confirmed that the unit that was supplied to him by the EPS(with continuity of this unit from the vehicle confirmed through otherevidence), did record the time and routing prior to and after the collision.

33 Mr. Burgett was an impressive witness sought to be qualified for thefirst time in a Canadian court. For this reason I wish to review his evi-dence during the qualification process. He has a Masters in electrical en-


gineering, and is the director of global navigation technology at GarminInternational Inc. He holds over 15 patents in this science.

34 Global positioning began in the mid-80s, by which time scientists hadbeen able to reduce the size of atomic clocks (an essential element of thetechnology) to a point where they could be practically and safelylaunched into orbit on a GPS satellite. Mr. Burgett was in the field from1991 onward and therefore his direct practical expertise as well as hiseducation relates to the science of global positioning technology. He isan advisor to the President of the United States and to the Federal Avia-tion Authority (as well as other American agencies) on this technology.That information was pried out of him due to his modesty. He has onlyonce given evidence in the United States courts, where global positioningevidence was used to convict someone of murder. His appearance beforeus was his only in court appearance in Canada. Despite this, I infer thatthe reason he rarely gives evidence in court, is that because counsel whenseeking opposing opinions about the accuracy of GPS are quickly toldthat as a result of the atomic clocks (for our purposes the most accuratein the world) and the redundancy of the satellite system where a GPSunit only needs to receive four of approximately 32 orbiting satellites,that the GPS system, when operating properly, and interpreted properly,is precise in its accuracy.

35 How could it be otherwise? An aircraft carrying 500 people can takeoff from the longest runway in Vancouver enter the clouds, 250 feetabove the ground, fly all night through the clouds and land the next dayin Beijing, China, breaking out of the clouds, 250 feet above the groundwith the runway directly in front of it. Global positioning has made avia-tion much safer and allowed owners of vehicles to have better situationalawareness when they are in unfamiliar locations, but has also become agreat boon to forensic science. Assuming that the operator / technicianutilizing appropriate proprietary software is able to extract the detailsfrom the GPS system, that evidence is accurate and reliable.

36 When that GPS evidence is overlaid through a software program on amapping program such as Google Earth small deviations and fluctuationswill occur. This is not a result of errors in the GPS location, but in theerrors that exist in the mapping programs. Also, the GPS records a his-tory of a moving vehicle, in a series of straight line segments, so a vehi-cle driving a gently curving road might from time to time appear to beleaving the road. This is not evidence of imprecision. Nor is it evidence


of bad driving. It is simply a requirement to understand the limitations ofthe science.

37 An expert is an individual who by a combination of education, train-ing or experience can provide an opinion interpreting certain evidence. Inthe field of GPS technology and record retrieval Mr. Burgett exemplifiedthe gold standard of expertise. I accept his evidence without reservation.Despite this acceptance of his evidence about the GPS, the informationprovided corresponded with other real evidence in the case. I also acceptthe GPS timing, average speeds and location of the vehicle without reser-vation. Where the GPS evidence conflicts with any evidence, includingviva voce evidence, the GPS evidence is to be preferred.

38 I have charted the Garmin evidence of the location and times of thevehicle and compared this independent global positioning informationwith other known information relating to this investigation. The compar-ative chart next appearing in this judgment establishes, in my view, be-yond a reasonable doubt that the database of the equipment was up-to-date, the programming of the equipment and the satellite reception wasaccurate, and that the global positioning reports are confirmed. The re-corded GPS information matches other known or admitted facts. Thealignment of this data and its consistency is such that I can say beyond areasonable doubt that the vehicle traveled where and when the GarminGPS system indicated. Further, where the global positioning systemtimes differ from the estimated or reported times scheduled in paragraph24, the GPS times are superior, absolute, and are preferred by me. Thetimeline in this case is as the GPS establishes it, and the oral and otherevidence further confirms its accuracy in related to the stated times andlocations where the vehicle was traveling and parking.

39 The GPS schedule follows:


Garmin time GPS location Comparative Notesstamp objective

evidence

Saturday Octo-ber 13 2012

6:50 PM Leaves Chrysler Evidence of This time is al-dealership. Chrysler em- so confirmed in

ployee places Mr. Didechko’stime around statement to the6:30 PM. police on Octo-

ber 14, 2012.

7:16 PM Parks at the This addresshome of Mr. will be occa-Didechko’s fa- sionally referredther (5535 145A to as the 145A,Ave, address.Edmonton).

8:05 PM Arrives and Location admit-parks for about ted by Mr.one hour near Didechko inthe restaurant October 14,where Mr. 2012 statement.Didechko atesupper.

9:43 to 10:41 Vehicle parked Location admit-PM at Jox Sports ted by Mr.

Bar. Didechko inOctober 142012 statement.

10:48 PM to Vehicle parked Consistent with2:00 AM at Richard’s bar records

Pub. showing Mr.Didechko leav-ing bar around1:59

Sunday October14 2012


Garmin time GPS location Comparative Notesstamp objective

evidence

2:24 to 2:44 Vehicle travelsAM south on 82nd

St., past area ofaccident site,turns off 82ndSt. and stops inthe area

2:30 to 3:09 Vehicle engages The fatal colli- See paras 40-AM in unusual driv- sion occurs dur- 41, below.

ing and stop- ing this periodping pattern, at 3:06 AMbefore finallystopping at the145A address,at 3:15

3:15 to 10:29 Vehicle station- A seven hourAM ary at 5535- period following

145A Avenue. the fatal colli-sion.

10:29 to 10:57 Vehicle travels The vehicle wasAM with one stop to located at some

the location point afterwhere it is 11:30 AM by afound by the civilian and re-EPS damaged ported to theand abandoned. EPS.Tracking endsat 10:57 AM

40 The pre-accident routing pattern: After leaving Richard’s Pub at 2:00AM the vehicle returns to the strip mall that serves as a parking lot forJox Sports Bar. The vehicle leaves that location at 2:24 AM then pro-ceeds at least twice past the accident scene. However between 2:57 and3:07 AM, the window of time for the collision, the vehicle goes to theresidence on 145A Avenue, remains there for about two minutes, with


the engine running, then travels back and passes by the accident sceneagain.

41 The post-accident routing pattern: Between 3:07-3:09 AM, immedi-ately post-accident the vehicle parks in a residential neighborhood nearan address around 86th St. and 138th Ave. This is slightly south of thecollision and west of 82nd St. It then travels north on 82nd street passingthe scene of the collision on the opposite side of the road, then leaves82nd St. and proceeds to the 145A location - Mr. Didechko’s father’shome. The vehicle stays there from 3:15 AM until 10:29 AM, at whichpoint it begins its trip to the point on Fort Road where it is abandoned.

42 From the GPS records, if one accepts that Mr. Didechko drove thevehicle from the Richard’s Pub, (which he acknowledged in his state-ment to police), there is between that departure time and the time of thefatal collision a total of three stops where the driver could have changed.Since Mr. Didechko reported to the police that he drove to his father’shome, whereupon the vehicle allegedly must have been used by someoneelse, there is only one time prior to the accident where the vehicle was atthe 145A location. This is a two-minute stoppage in the segment between2:57 and 3:07 AM. It is therefore impossible for Mr. Didechko to havebeen home before 2:30, then placing the keys on the kitchen table givingsomeone else the opportunity to kill Ms. Jackson.

43 The only other alternative, that a driver was substituted during one ofthe other stops prior to the accident, is not indicated in Mr. Didechko’sstatement to the police. Further, the GPS records establish to an absolutecertainty that the vehicle spent seven hours after the accident at the homeof Mr. Didechko’s father parked on the driveway. That is where theCrown asserts Mr. Didechko parked it after the fatal collision. The GPSrecords also clearly establish that the vehicle drove from Mr. Didechko’sfather’s residence to the place where it was abandoned. That GPS con-firmed routing greatly militates against a vehicle theft preceding thecollision.

b. Cell Phone Tower Evidence44 The EPS obtained warrants and/or production orders to obtain certain

telecommunication records that relate to mobile telecommunication de-vices and their usage. These included those of Mr. Didechko and otherpersons of interest. The devices in question used subscriptions with Teluscommunications and Rogers communications. Mr. Don Calpito from Te-lus, and Mr. David Mak from Rogers, gave nearly identical evidence


about how the cell phone system works. Neither have any stake in theoutcome of this trial. Their evidence was confirmatory in terms of theaccuracy of the network system and the records created by it, and theyhave to both be considered objective uninvolved witnesses. Both super-vised the release of cell phone record information pursuant to court or-der, and released nothing more than what was ordered. Both had signifi-cant familiarity with the records and the equipment that generated them.Both were confident in the accuracy and precision of the records theyproduced. While neither was qualified as an expert, they gave evidenceof their direct hands-on knowledge of the computer and tower technol-ogy that allows Canadians to now take for granted the telecommunica-tion network. Their evidence is highly persuasive in this trial.

45 Most in society today are aware that what started as a wireless phonesystem network has now expanded to personal handheld devices, whichutilize cellular networks to transmit traditional phone calls, text messagesand even larger electronic documents, all through the cellular network.However, to simplify these reasons, I will occasionally fall back to thenow dated moniker of ‘cell phones’. Mr. Didechko, his brother, andothers in his family and his circle of friends all had cell phones. Somewere serviced through the Rogers network others through Telus. Whilethe systems work essentially the same, at the time of this offense Teluswas continuing to record and save text messages sent by their customersso some of the Telus records include the actual text conversation betweenvarious devices of interest. Rogers was not recording text messages at thedate of this investigation. Today my understanding is that no supplierrecords text messages, so once a text message is erased from a telecom-munication device it is gone.

46 A record of all the calls or texts made by Mr. Didechko on his phoneto third parties around the critical time were entered in evidence. We alsohave corresponding records of other third parties of interest in this casewho received those texts and, in a few cases, we actually have the textthat was communicated.

47 Based on the evidence given by both Mr. Don Calpito [Telus], andMr. David Mak [Rogers], I can comfortably accept the concept that al-though the unit in a customer’s hand is wireless, its range is not infinite.Both the Rogers and Telus wireless networks rely on a vast infrastructureof towers that are sending and receiving signals from the handheld de-vices. The tower does not know where the actual device is, however,since the units are programmed to allow for satisfactory communication,


the cell phone automatically selects the strongest signal that it is receiv-ing. I accept that all things being equal, the strongest signal will likely becoming from the closest tower. However, this is not absolute, because thesystem has been designed to reduce customer dissatisfaction, so there iscertain overlap between towers’ communication range.

48 Common sense would tell us that if there were two towers, by exam-ple 500 feet apart, as may be the case in a concentrated high densityurban area, a signal received by one of those towers may not establishmuch, and certainly would not prove beyond a reasonable doubt wherethe devise actually is located. To expand this concept with an example,assume at one extreme there were only two towers of equal strength. Onein east Edmonton, the other in west Edmonton. Common sense wouldindicate that a cell phone that is communicating through the east tower isprobably somewhere in east Edmonton, however, as one approaches thearea of interface where the range of one tower meets the range of an-other; atmospheric and other conditions may give a false indication asone tower takes over the transmission due to signal strength.

49 So while the tower does not know exactly where the phone is there isa direct correlation between the strength of the signal and the device.And while certainly there could be exceptions, there must, on a commonsense basis be a direct correlation between the distances from the towerto the device. I accept that the science is not absolute, but this is the usualsituation.

50 Part of the retrieved information obtained from both Rogers and Telusindicated what towers were transmitting calls between the devices of in-terest during the relevant time period. The location of these towers canbe plotted on a map.

51 There were three critical locations of interest in this case: the twotowers that were located closest to where the collision occurred and thetower closest to where the vehicle was abandoned.

52 The Crown adduced evidence that during his first report that the vehi-cle was stolen Mr. Didechko’s cell phone was accessing the Rogers net-work tower in close proximity to the location where the vehicle wasabandoned. This tower is unique in that it is situated a significant dis-tance from other towers and basically covering the area where the vehi-cle was abandoned. It is also of considerable interest that the Rogerstower serving the Fort Road area was between the other relevant Rogers’towers and the abandoned vehicle. Not only was that tower the closest(less than 1.5 kms from the abandoned vehicle), this means that there


were no otherwise suitable equidistant towers. Where the vehicle wasabandoned on Fort Road, the Rogers Fort Road tower would be the antic-ipated tower that would handle calls in this area.

53 The telecommunication suppliers also have another feature on someof their transmission towers that allows additional information to be re-trieved about the location of the handheld device. There are 360° thatradiate around a tower. Rogers has created sector antennas on their tow-ers and have the electronic technology that not only tells which tower isreceiving the signal but also which sector in that tower is doing so. Thus,a signal received from a device, which triggers one of the sectors, can beexpected to fall into a wedge-shaped space radiating out from the sectorand to share the direction of that sector. Multiple sectors are usually pro-vided to ensure full 360° coverage. Each sector encompasses approxi-mately 120°.

54 I also accept that because of the mercantile interest of the companiesinvolved, there is accurate precision tracking (literally to the second) ofthe transmission details from the point of view of the company and theircustomer. When this information is obtained pursuant to warrant or pro-duction order, there is almost absolute certainty that the information con-tained is correct. That information reveals the phone numbers of thesending and receiving device, the time and the duration of the transmis-sion, and whether the communication was a text or a phone call.

55 This detailed record keeping ensures that some information is ex-tremely reliable, including the towers through which the call was rooted(at least at the start and end time of the transmission). This does notmean that it is absolutely certain that the device making or receiving acall is in the immediate proximity of the routing tower, but it does lead toa strong inference that the device routed through the tower emitting thestrongest signal, and that is capable of another strong inference that thetower emitting the strongest signal was the closest tower to the device.

56 The level of certainty about the last potential inference may dependon numerous factors, such as other towers in the area, usage volumes,population densities, atmospheric issues, line of sight issues, and mainte-nance and service issues. The location of the towers is a specific identi-fied location, and this location can be combined by a data technician whocan overlay the various towers onto a map and identify the cell phonetower that handled various communications. This information may be in-conclusive in isolation but can reveal probabilities, possibilities, andeven provide proof of certain events beyond a reasonable doubt when


considered and correlated with the other objective and subjective evi-dence in a court case.

57 I also accept that the individual records between two suppliers track-ing the same call may vary slightly in terms of the length of the transmis-sion. This is not inaccuracy; but simply reflects slightly different billingpractices. In this case, the police became very interested in the cell phonetransmissions made by the accused Ken Didechko, and his brother, TomDidechko, around the time of the collision and the period during whichthe vehicle moved from the 145A location to where it was abandoned onFort Road near Meridian Street. These critical calls are reflected on eachcell phone record. At 3:08 AM, two minutes after the fatal collision, KenDidechko’s phone called his brother, Tom. Both records of the incomingand outgoing transmission records document a very similar time: 3:08:13(sending phone) 3:08:01 (receiving phone). It is ominous evidence that acall of approximately 45 seconds was exchanged between these brothersimmediately after the accident. The sending phone uses a tower veryclose to the accident while the receiving phone uses a tower very close tothe 145A location. The vehicle then drives northbound past Ms. Jack-son’s body, again stops, and in a longer call Ken Didechko’s phone iscalling his brother Tom. We will never know what those two calls areabout, but the strongest possible inference is that Ken is calling hisbrother Tom for advice. The first bit of advice may be to drive back andsee what’s going on, and the second — well, that depends on how muchfaith one has that the Didechko boys are honorable.

58 The defence, in cross-examination, obtained a concession from Mr.Mak that the catch area for transmission is very large. If, for example, thetower signal radius is 10 km the appropriate formula for determining thearea in a circle is 10×10×3.14 = 314 km2. I accept that finding a specificphone in that large area is like finding a needle in a haystack. But thecellular network still gives us information about what haystack to lookin. In this particular case, it is highly significant, and a powerful infer-ence that numerous calls and texts made by Mr. Didechko’s phonearound the time the vehicle was abandoned, and after, were routedthrough the tower closest to where the vehicle was abandoned.

59 I will return to the cell phone networks in further detail, but, I anchornow in this judgment that in my view, the location of the towers, thedetails of the various transmissions, and the timing of those transmis-sions is proven to absolute certainty. The question of where the device


was at the time the communication was occurring is less certain, and thatrequires careful analysis and an assessment of the level of proof.

60 These records also do not prove who was actually in possession of orusing the device. However, in this case, at no time in his involvementwith the police did Mr. Didechko ever indicate that he was separatedfrom his personal device. I have no evidence and it would be pure specu-lation to conclude that anyone else other than Mr. Didechko was usinghis personal device at the time it was active in the late evening of Octo-ber 13 and through to his first interview with the police on October 14.Further the call history and a group of calls and texts, to a female using athrow away prepaid phone and going by the name of ‘Montania Marie’,and the nature of the intimate and personal dialogue between this womanand Mr. Didechko, further augment the inference that Mr. Didechko hadhis phone with him through the evening and into the morning.

61 Further to this, there is positive evidence Mr. Didechko’s phone waswith him. Mr. Didechko utilized his cell phone to provide his initial sto-len vehicle complaint. That would be impossible if Mr. Didechko hadleft his phone in the vehicle and the vehicle was stolen. Mr. Didechkoalso used his cell phone to provide phone numbers to Detective Weaverduring his interview at 4:00 PM on October 14. The video of that inter-view proves beyond a reasonable doubt that Mr. Didechko had his phonewhen he accompanied the police to the station on October 14, and thenature of the calls the previous night and early morning, leads me to con-clude beyond a reasonable doubt that at all relevant times Mr. Didechkowas in possession of his cell phone (personal device). He is where it is!

62 It is also absolutely proven which towers handled the calls both froman incoming and outgoing point of view, and at the receiving end thetowers that handled the call are also identified. How certain are we thatthe device is near the towers involved depends on common sense. It ishighly likely that physically the nearest tower is also the emitter of thestrongest signal and that the device is near that tower, although there canbe and were exceptions.

63 The vehicle was located by EPS about 1.5 kilometers from the Rogerstower identified as the Fort Road tower (17351 18 St. NW (SW5-54-23 -W4M)). This tower has three sectors which Mr. Mak described as site I,J, and K. The location of the abandoned vehicle fell within the electronicshadow of sector I. There are no other closely located Rogers’s towers inthat area of northeast Edmonton (see Exhibit 23).


64 Between 10:56:01 AM and 12:45:04 PM October 14, 2012 - approxi-mately two hours - Mr. Didechko’s personal hand held device (cellphone) received or sent 20 transmissions which used the Rogers FortRoad cell tower. The Crown asserts that this proves beyond a reasonabledoubt that Mr. Didechko was in the area of the abandoned vehicle at atime when it was abandoned. I agree, particularly in light of what Mr.Didechko said in those calls to the EPS. Even if one or more calls mayhave routed to that tower for other logistical capacity reasons, not all ofthem would have used that tower unless the phone was near it.

4. The Combined GPS and Telecommunications Evidence65 The Crown called EPS civilian witness Allison Bouthillier. Ms.

Bouthillier conducted no part of the actual investigation leading to thecharges against Mr. Didechko. However, she has the technical skill,knowledge, and appropriate computer tools that she can overlay identi-fied known locations, places and routes onto a map and produce an ex-hibit, which can provide useful evidence to the court provided that theinputting locations are ultimately established to be accurate.

66 Ms. Bouthillier programed on a map of Edmonton the locations iden-tified and developed in the investigation. She took the identified cellphone towers and plotted these on the map, as well as the calls comingfrom and being received by the Didechko brothers at relevant times.

67 I am satisfied that the information that Ms. Bouthillier placed on themap is accurate and accurately describes each item. For example, there islittle doubt about the location of the two bars that that Mr. Didechkoattended during the evening of October 12. Nor is there any doubt aboutthe location of the cell phone towers that were receiving and transmittingmessages, and I accept that it has been proven beyond a reasonable doubtthat the GPS information accurately describes the path the vehicle fol-lowed, both as to time and routing.

68 When all of this data is assembled it paints an internally consistentpicture of the vehicle being driven to the two bars, then leaving thosebars then proceeding several times north and south on 82nd St. The vehi-cle reached 82nd St. and 141st Ave. at virtually the time identified as thecollision time, and then proceeding to Mr. Didechko’s father’s home.The vehicle remained parked at that address for seven hours, then trav-elled to the location where it was abandoned on Fort Road. This evidenceprovides strong support for the theory of the Crown in this case.


69 In a nutshell, and I will return to this, the technical information pro-vided by Garmin, the GPS manufacturer, and the forensic evidence dis-closed by the use of cell phones and routing transmission towers is notreconcilable with Mr. Didechko’s oral information about his wherea-bouts at the critical time.

5. Applying the Law to the Critical Facts of this Case70 The key question is this: has the Crown proven beyond a reasonable

doubt that Mr. Didechko was either the driver of the vehicle or an occu-pant with a legal duty at the time Ms. Jackson was struck?

a. W. (D.) Step 171 My first step is the W(D) analysis. I must review whether I believe

Mr. Didechko and his denial that he was in or driving the vehicle at thetime of the collision. This is the first step of the W(D) analysis. If I be-lieve Mr. Didechko’s evidence then I must acquit him.

72 I do not believe his denials for a number of reasons. First, his state-ments are internally inconsistent. He changed his story between the po-lice reports and his longer interview. These narratives are externally in-consistent with the other technical scientific evidence that isoverwhelming and reliable. For example, Mr. Didechko changed the lo-cation where the vehicle was stolen in the space of less than 10 minutes.First the vehicle was stolen at Richards’s Pub. That then changed to Mr.Didechko concluded the vehicle was stolen from his father’s home. Mr.Didechko also indicates in the initial calls to EPS (October 14, 2012 in-terview, line 201) that he concluded the vehicle was stolen only when hisbrother came to pick him up. In his longer interview with the police heindicated he drove to his own home using his brother’s Jeep, then calledhis brother to drive to the bar and pick up the car, and was told the carwas at his father’s home — the place he had just left. There are otheranomalies and inconsistencies between his various statements.

73 Further, the extensive cell phone activity on Mr. Didechko’s cellphone in the period immediately before Ms. Jackson was struck and im-mediately after makes it absolutely certain that he was not sleeping in hisfather’s home. His phone was making repetitive calls initially of a flirta-tious and implicitly sexual nature between the individual with throwawayphone identified as Montania Marie, and after Ms. Jackson was struck,repeated phone calls were made to his brother and other others. Thesecommunications ultimately culminate with a 5:00 AM text message to


Montania Marie: “something bad happened sry”. No one could believeMr. Didechko’s evidence, it is overwhelmed by the objective scientificevidence.

74 I reject Mr. Didechko’s account of his whereabouts and the activitiesof the vehicle, which ends step one of W. (D.).

b. W. (D.) Step 275 Moving to the second step of the W(D) analysis, having not believed

Mr. Didechko account, does his evidence at least raise a reasonabledoubt? Here Mr. Didechko’s evidence cannot do so because it clashes sogreatly and on material particulars with the other forensic evidence. Thisinformation is completely irreconcilable. It is not possible for Mr.Didechko to be believed to the point of raising a reasonable doubt whencompared to the objective forensic evidence that is credible, and unchal-lengeable. Further, how could he possibly have gotten the plate numberand serial number of the vehicle in his intervening calls, if he did nothave access to the vehicle between those calls? In his first call to EPSMr. Didechko claimed he did not have the serial number or plate number(at 11:20 AM) while at 11:39 AM he had the licence plate informationand the partial VIN number. Only on his third call to the EPS did he haveall the information to properly report a stolen vehicle. While he did makeone call to the dealer’s representative, the representative did not indicatethat phone call was a request to supply the number of the plate or theVIN number of the vehicle. The speed with which Mr. Didechko ob-tained these two additional pieces of information leads to a strong infer-ence that he had access to the vehicle while making the calls to EPS.

76 In addition, the GPS and cell phone tower evidence means that Mr.Didechko’s oral statements to the police simply were not true. State-ments that cannot possibly be true cannot raise a reasonable doubt. Thevehicle was parked on his father’s driveway (the address where Mr.Didechko was purported to be sleeping) from 3:15 AM to nearly 11 AMon the Sunday morning. This time spans the period from just a few min-utes after the fatal collision to the time the vehicle was transported fromhis father’s driveway to the place where it was abandoned and laterfound by the EPS.

77 The reconstruction of the routes traveled by the vehicle and the vari-ous times it arrived at certain locations mean that Mr. Didechko musthave been lying to the police in his statement. Therefore, his own evi-


dence does not raise a reasonable doubt. It is internally inconsistent, and,as importantly, externally inconsistent with other evidence.

78 That ends the second step of the W. (D.) process. Mr. Didechko’sevidence does not create a reasonable doubt. This, however, does notmean that he is automatically guilty of the crimes against which he hasbeen charged. Instead, I proceed to the third step of the W. (D.) proce-dure, that I must carefully consider all of the evidence which I do acceptto determine whether the Crown has proven Mr. Didechko’s guilt beyonda reasonable doubt.

c. W. (D.) Step 379 We begin with the proposition that Mr. Didechko drove the vehicle

from Richard’s Pub and ultimately parked at his father’s home. He ad-mits as much to the police. There were several stops along the way andseveral unexplained sequences of backtracking back and forth on 82ndSt. Mr. Didechko told the police that he drove his brother back to hisfather’s home at which point a party started and Mr. Didechko fell asleepdownstairs. Mr. Didechko has clearly shifted the times, but I find beyonda reasonable doubt that he was operating the vehicle and was the soleoperator between the time it left Richard’s Pub and the time it pulled intohis father’s driveway at 3:15 AM. Could the driver have changed in thetwo minutes the vehicle was at the home just before the fatal collision?This is inconsistent with Mr. Didechko’s statement that he had stoppeddriving before 2:30 AM. It is more consistent with him driving hisbrother Tom home to their father’s house. Tom perhaps gets a party go-ing but Ken Didechko starts cruising back in the area of 82nd St. It there-fore is highly probable that Mr. Didechko was operating the vehicle at3:06 AM when it struck Faith Jackson. Other evidence turns this highprobability into proof beyond a reasonable doubt.

80 First, there is also a confirmatory telephone call from Mr. Didechko’scell phone at 3:05:38 on the morning of the collision which starts at atower on 82nd St. north of the collision site, but ends using a towerslightly south and east of the accident scene (see Exhibit 23).

81 The representative from Rogers fairly indicated that the switch be-tween the two towers during one call does not conclusively mean that thephone was in motion and moving closer to the second tower, however,here, where the GPS record indicates the vehicle is moving south on82nd St. from close to the first tower and passes the scene of the accident


and concludes close to the second tower that leads to a strong inferencethat:

1. Mr. Didechko was on his phone and driving the vehicle,

2. The vehicle travelled south on 82nd St. 22 seconds before the ac-cident and

3. Mr. Didechko was just off his phone six seconds before theaccident.

82 Further, there is a 35 second call at 3:08:13, less than two minutesafter the accident. This second call starts and completes on the towerwhere the earlier call ended, while the vehicle is slightly south and to theeast of the accident. Between 3:07 AM and 3:09 AM the vehicle hascome to a stop and remains stopped for about two minutes near 8646138th Ave. NW. During that time Mr. Didechko’s phone was communi-cating through a tower less than six blocks away at 7408 139th Ave. Thisis the tower notionally closest to where the vehicle had stopped after theaccident. Importantly, this tower was sectorized which provides more de-tail on the area where the vehicle was stopped (see para 53, above). Therecipient of that call was Mr. Tom Didechko. His phone records indicatehis cell phone was routed through a tower in close proximity to his fa-ther’s house at 145A Avenue.

83 Cell tower tracking is not definitive in isolation, and in isolation maynot constitute proof beyond a reasonable doubt. However, when it is fac-tored and considered along with the GPS tracking, inferences can bedrawn that lead to proof beyond a reasonable doubt that Mr. Didechkowas in that vehicle a few seconds before the collision and a few secondsafter and at that point was using his cell phone. Obviously, this evidenceis completely inconsistent with Mr. Didechko’s account that he washome at his father’s house and passed out. First, he would not be on thephone at those times, and, secondly, the phone would not be utilizingthose towers.

84 I conclude from the evidence which I do accept that around 3:06 AMin the morning, Mr. Ken Didechko is driving the vehicle south bound on82nd St. at the time that Ms. Jackson was struck fatally. Mr. Didechkostruck Ms. Jackson, and left the scene, however, he then stopped on138th Ave. NW, where he makes a call to his brother. Then, perhapsovercome with guilt, perhaps grief, fear, curiosity, or on advice from hisbrother, he returned to the accident scene to see what was going on. Henow had another chance to do what is right - to stop and report what hadhappened and his involvement - but instead Mr. Didechko drove to his


father’s home and parked the vehicle at his father’s home at 3:15 AMuntil 10:29 AM the next morning, when he took the vehicle and aban-doned it along Fort Road, by Meridian Street.

d. The Calls to the EPS Non-Emergency Report Line85 While in the area where the vehicle was abandoned Mr. Didechko

reported the fabricated theft to the EPS non-emergency line at (780) 423-4567, leading the EPS to embarking on an investigation of a false com-plaint about a car theft.

86 Mr. Didechko’s cell phone records shows the first of these calls wasat 11:20:39 AM on October 14, the second was at 11:33:08 AM, the thirdat 12:03:22 AM, and the fourth at 2:15:16 PM. The first three calls con-nected through the nearest and most probable Rogers tower, which is thetower previously described that is close to where the vehicle was aban-doned. The last and much later call uses a tower appropriate and reasona-bly aligned and closest to Mr. Didechko’s home. After a while circum-stantial evidence can become overwhelming!

87 In the second of these calls, Mr. Didechko was asked the phone num-ber from where he was calling and he gave his cell phone number. Thecalls vary in length:

• first - 57 seconds,

• second - 769 seconds,

• third - 521 seconds, and

• the fourth - 592 seconds.88 These times approximately match the length of the four recorded

calls. There are two pieces of critical evidence revealed by these calls.The first is that Mr. Didechko does not have all of the information thepolice require, but he is able to accumulate that as the calls progress.Second, the first three of these calls are routed through the Fort RoadRogers tower closest to where the vehicle was abandoned. If Mr.Didechko had been calling the EPS report line from his father’s home, orhis own home, as indicated in his description of his travel that morning,other more realistic closer towers would have been accessed. I concludeMr. Didechko was reporting the theft of the vehicle from the area wherehe himself abandoned it.

89 Mr. Didechko does make a lengthy fourth phone call to the EPS re-port line. This call transmits through a tower close to Mr. Didechko’shome, which is the most logical tower to handle a cell phone located in


his home. Mr. Didechko had been offline for a while. He indicates hisphone “had died” (October 14, 2012 interview, line 400). This was thelast call to the EPS and at this point Mr. Didechko was at his home. Hewas told by EPS the police were on their way to see him. They arrivedthere shortly after.

90 A thief who had stolen the vehicle would not continue to engage Mr.Didechko’s father’s 145A location, nor would that thief likely be doub-ling back around the scene of the accident, and also be travelling in thearea Mr. Didechko was cruising prior to the collision. Last, if the uniden-tified alternative driver was a friend from the party who actually did de-cide to return to the party after the theft, that individual would have leftthe vehicle in the father’s driveway to cast suspicion away from the thiefand back on Mr. Didechko. Had Mr. Didechko clearly been the victim ofa theft by a party attender who returned the vehicle he would have re-ported the vehicle damaged right from its location on the driveway to notimpede the police investigation. There would be no need for him to takethe vehicle at 10:28 AM to its abandonment place on Fort Road. Onlysomeone who knew the vehicle had been in a serious collision wouldneed to do that.

91 The routing of the accident, the parking of the vehicle, and then itslater delivery to the location where it was abandoned, as well as the cellphone call history is completely inconsistent with anybody other thanMr. Ken Didechko driving the vehicle. Putting it the other way it is com-pletely consistent with Mr. Ken Didechko being the vehicle operator dur-ing the hit and run.

e. Did Mr. Didechko Know Ms. Jackson’s Degree of Injury92 I am satisfied beyond a reasonable doubt that Mr. Ken Didechko was

driving the vehicle when it struck Ms. Jackson. The evidence is over-whelming and no other rational conclusion is even remotely possible.

93 This satisfies the criteria of Criminal Code, s 252(1): 252(1) Every person commits an offence who has the care, charge orcontrol of a vehicle, vessel or aircraft that is involved in an accidentwith

(a) another person,

. . .

and with intent to escape civil or criminal liability fails to stop thevehicle, ... give his or her name and address and, where any personhas been injured or appears to require assistance, offer assistance.


94 Criminal Code, s 252(2) creates a presumption that if a person fails tostop, render assistance, and give their name, then that presumptivelyproves that the failure to do those things was with “an intent to escapecivil or criminal liability.” Mr. Didechko did none of those things. He istherefore presumed to have attempted to escape the consequences of hisactions.

95 I therefore conclude Mr. Didechko had a duty to stop and render as-sistance to Ms. Jackson. He failed to do so. The count of leaving thescene of an accident has been made out. However, this count, which weshorthand to ‘hit and run’, has several component parts to it. The Crownhas prosecuted this charge at the most serious level, Criminal Code, s252(1.3) leaving the scene of a motor vehicle collision knowing that youhave caused death to someone or sufficient bodily harm that you arereckless as to whether death ensued:

252(1.3) Every person who commits an offence under subsection (1)is guilty of an indictable offence and liable to imprisonment for lifeif:

(a) the person knows that another person involved in the accidentis dead; or

(b) the person knows that bodily harm has been caused to anotherperson involved in the accident and is reckless as to whetherthe death of the other person results from that bodily harm,and the death of that other person so results.

96 I conclude the described impact in this accident, which threw Ms.Jackson over the entire vehicle and caused extensive damage to theDodge charger, means that Mr. Didechko had to have known either thathe had killed Ms. Jackson, or that he seriously injured her. His leavingthe scene meant he was reckless about her state of health.

97 Further, when Mr. Didechko returned post-accident for the drive-by,he would have seen the frantic efforts of the paramedics and perhaps bythen the arrival of the ambulance. Both would inform him that this was aserious collision with a pedestrian, with a serious consequence. I con-clude that essential degree of injury element and the serious nature of thecollision has been made out to at least to the level of knowledge of bod-ily harm, and the accompanying recklessness about the death of Ms.Jackson.


f. Did Mr. Didechko Obstruct Justice?98 Mr. Didechko is also charged with Criminal Code, s 139(2), ob-

structing justice: 139(2) Everyone who wilfully attempts in any manner other than amanner described in subsection (1) to obstruct, pervert or defeat thecourse of justice is guilty of an indictable offence and liable to im-prisonment for a term not exceeding ten years.

99 This section criminalizes a willful attempt to obstruct, pervert, or de-feat the course of justice in a judicial proceeding. Canadian cases ap-prove the common sense approach that this level of obstruction to pervertor obstruct or defeat the course of justice can also apply in the investiga-tive stage. In this case, I found factually that Mr. Didechko was thedriver of a vehicle that hit Ms. Jackson. In an attempt to evade liabilityfor that misconduct he first fled the scene, and then in an attempt to con-fuse and divert the police investigation, he reported that the vehicle wasstolen and took steps to relocate the vehicle away from his father’s hometo add plausibility to the story. I conclude beyond doubt that he hadknowledge of the true state of affairs and intentionally made a false com-plaint and allegations in an attempt to obstruct the course of justice in acriminal investigation.

100 I therefore find Mr. Didechko guilty of Count 1.

g. Dangerous Driving Causing Death101 The last count is the count of Criminal Code, s 249, dangerous driv-

ing causing death. The law on this issue requires certainty and proof be-yond a reasonable doubt that at the time in question, Mr. Didechko wasdriving in a way that constituted a significant or marked departure fromthe driving pattern of a reasonably prudent person: R. v. Beatty, 2008SCC 5, [2008] 1 S.C.R. 49 (S.C.C.). This was again emphasised in R. v.Roy, 2012 SCC 26, [2012] 2 S.C.R. 60 (S.C.C.).

102 These two cases make clear that dangerous driving is not made out asa charge simply because of a bad outcome. Here, it is clear that the out-come was the worst possible: a young woman lost her life. Second, inmany dangerous driving cases, the accused will give an explanation toperhaps explain a medical incident, or an unusual driving circumstanceto explain away that which appears superficially to indicate the vehiclewas operated in a dangerous manner. Despite many cases resulting in anacquittal where these explanations have been given, there is no burden onthe accused to explain a driving pattern.


103 There is little if any, evidence here that the vehicle was being oper-ated in a dangerous way. The first responder from the fire departmentwho observed Ms. Jackson struck and noted that the vehicle flashed itsbrake lights, but did not stop as required by law, was unable to say thatthe vehicle had been speeding or breaching any other observable rule ofthe road prior to that point. The Charger’s onboard GPS system reflectsonly modestly elevated speed. While the lighting on 82nd St., a majorEdmonton artery, was more than adequate, Ms. Jackson was on the driv-ing portion of the lane. How and when she got there in relation to thecollision is not determined.

104 There is some evidence Mr. Didechko had consumed alcohol. Mr.Didechko indicates he had a drink at each of the first two places he at-tended. The security video from Richard’s Pub shows the consumptionof at least two shots (1 ounce each of at least 40% alcohol), and severaldouble drinks, over the course of the evening. The security tapes at theestablishment show Mr. Didechko purchasing the equivalent of 9 drinksbut the tapes do not film him continuously so there is no conclusive evi-dence that he consumed all those drinks. He was milling around withothers in a stand up portion of the bar. Therefore, based on a combinationof the videos and Mr. Didechko’s own admissions he may have con-sumed the equivalent of 11 standard drinks over a significant time periodbut up to nine of these in the time from 10:30 PM until 2:00 AM. Mr.Didechko is a big man; some anecdotal evidence in the trial expressedthe view that he may be over 240 pounds. He is of an age where he maywell be a seasoned drinker. It is difficult to conclude that the Crown hasproven beyond a reasonable doubt that he was impaired by alcohol.There was of course no expert evidence on the effect of alcohol on driv-ing, but I may take judicial notice of the fact that although alcohol affectseverybody differently driving skill and motor coordination generally de-teriorates with the onset of the consumption of alcohol. The level of dete-rioration in each driver and whether such deterioration leads to an ines-capable finding of dangerous driving probably requires expert evidence.

105 There is also the reality that Mr. Didechko was on his cell phone justbefore the collision, and it is a common-sense proposition that such ac-tivity leads to distracted driving, which, taken together with other factors,may constitute dangerous driving. However, based on the phone records,that call had ended approximately six seconds before the actual collision.Further, it is unclear whether this modern vehicle had a hands-free phonesystem. And the final element is that there is suggestion that Mr.Didechko was driving this vehicle for the first time as it was not his regu-


lar demonstration vehicle. Vehicular inexperience may also in some cir-cumstances lead to dangerous driving, if the operator is unfamiliar withthe vehicle and the vehicle is a high performance vehicle capable of at-taining high speeds quickly.

106 However, here, the GPS evidence indicates that in the tracking seg-ment, which started immediately before the collision and ended immedi-ately after, the average speed was only 72 km/h. While I accept that thatcould be the average of a high-speed and a reduced speed, my under-standing is that if the vehicle had rapidly decelerated the GPS, wouldhave sensed this and created another tracking segment. Also, the eye wit-ness indicated that the brake lights went on, but the vehicle simply droveaway. The average speed of 72 km an hour was quite possibly the impactspeed as well. The standard driving speed in an urban area is 50 km anhour, unless otherwise posted. 82nd St. is a major thoroughfare, so theposted speed limit may have been 60 km an hour. Either way, this is notexcessive speed on a nearly empty, well-lit street. At 3:00 AM in themorning, one would expect few users of the road and that is exactly thecase here. The traffic was light.

107 We have a situation where a pedestrian on the driving portion of theroad, but not in a crosswalk, is struck late at night by an individual whois proven to be speeding and proven to have consumed alcohol. TheCrown has not proven excessive speed, any other driving aberration norimpairment beyond a reasonable doubt. An eyewitness to the collisionobserved no other unusual circumstance, except that the vehicle involvedin the collision had left the scene.

108 I am highly suspicious that Mr. Didechko was probably impaired.That is likely why he fled, he knew he had been drinking and knew hewas probably over the legal limit. However, without a proper descriptionof how and when and for how long Ms. Jackson had been on the drivingportion of the road, and without any further conclusive evidence of im-pairment or distraction, my high suspicion cannot amount to proof be-yond a reasonable doubt of dangerous driving. Nor can it be said thatbecause he fled, the consequence that he intended to escape was an im-paired driving charge. The consequence could just as easily have beenthe civil liability for striking Ms. Jackson, or the commercial prejudice tohim by driving his employer’s vehicle having consumed alcohol, late atnight, and clearly not then engaged in the business of his employer.

109 Mr. Didechko must get the benefit of this doubt. This is an exampleof the third step of the W. (D.) procedure in action. I do not believe Mr.


Didechko’s evidence. Nor did his evidence raise a reasonable doubt, butthe Crown has still failed to prove beyond a reasonable doubt that he wasguilty of dangerous driving. High suspicion and probable guilt cannotmorph into proof beyond a reasonable doubt on Count 4.

G. Conclusion110 Mr. Didechko would you please stand:

• on Count 1, ‘obstructing justice’, I find you guilty as charged,

• on Court 3, leaving the scene of an accident, where death has oc-curred I find you guilty as charged

• on Count 4, despite my suspicion, the Crown has not proven yourguilt beyond a reasonable doubt and you get the benefit of thatdoubt, you are found not guilty of this count.

111 You may be seated while we discuss how you should be sentencedfor the crimes I have convicted you of.

Order accordingly.

Schedule A

Kenneth Raymond Didechko stands charged:

1. That he, on or about the 14th day of October, 2012, at or nearEdmonton, Alberta, did unlawfully and wilfully attempt to ob-struct, pervert or defeat the course of justice by giving false state-ment that vehicle involved in hit/run was stolen, contrary to Sec-tion 139(2) of the Criminal Code of Canada.

2. That he, on or about the 14th day of October, 2012, at or nearEdmonton, Alberta, did unlawfully cause bodily harm to FaithJackson, contrary to Section 269 or the Criminal Code of Canada.

3. That he, on or about the 14th day or October, 2012, at or nearEdmonton, Alberta, having had the care, charge or control of avehicle that was involved in an accident with Faith Jackson, andknowing that the said Faith Jackson died, or knowing that the saidFaith Jackson suffered bodily harm and being reckless as towhether death ensued, did, with intent to escape civil or criminalliability, unlawfully fail to stop his vehicle, give his name and ad-dress and offer assistance to any person injured or appearing torequire assistance, contrary to Section 252(1.3) of the CriminalCode of Canada.


4. That he, on or about the 14th day or October, 2012, at or nearEdmonton, Alberta, did operate a motor vehicle in a manner thatwas dangerous to the public and thereby caused the death of FaithJackson, contrary to Section 249(4) of the Criminal Code ofCanada.


[Indexed as: R. v. Evans]

Her Majesty the Queen and Winston Evans

Saskatchewan Court of Queen’s Bench

Docket: Weyburn QBCRIM 659/14

2016 SKQB 180

D.H. Layh J.


Criminal law –––– Offences — Dangerous driving causing death — Miscel-laneous –––– Mens rea — Accused picked up three work colleagues in earlymorning when conditions were dark and foggy — Accused’s truck collided withoncoming semi-tractor, whose driver testified that accused’s vehicle pulled intooncoming lane of traffic on highway to pass another vehicle, and that there wasno way to avoid collision — Two of accused’s passengers were killed in colli-sion and third passenger was seriously injured — Accused was charged with twocounts of dangerous driving causing death and one count of dangerous drivingcausing bodily harm — Accused acquitted — Evidence of witnesses as well asCrown’s accident reconstructionist established actus reus of offence of danger-ous driving — Accused’s driving was objectively dangerous, as it is highly dan-gerous to abruptly pull into passing lane on two-way highway without havingmeasure of certainty that passing lane is clear of oncoming traffic — However,mens rea of offence was not objectively proven — Degree of care exercised byaccused was not marked departure from standard of care, or mere carelessnessor momentary lack of attention — Injured passenger testified that accused wasdriving prudently and carefully for foggy conditions before she fell asleep —Accused’s decision to pass may have been consistent with simple misjudgmentof speed and distance in difficult conditions and poor visibility — It was notestablished beyond reasonable doubt that accused’s driving was characterized byfault element necessary to convict — Evidence did not sufficiently identify ac-cused as driver of “dark truck” noticed by witness to ground finding of patternof dangerous driving.

Criminal law –––– Offences — Dangerous driving causing bodily harm —Miscellaneous –––– Mens rea — Accused picked up three work colleagues inearly morning when conditions were dark and foggy — Accused’s truck col-lided with oncoming semi-tractor, whose driver testified that accused’s vehiclepulled into oncoming lane of traffic on highway to pass another vehicle, and thatthere was no way to avoid collision — Two of accused’s passengers were killedin collision and third passenger was seriously injured — Accused was chargedwith two counts of dangerous driving causing death and one count of dangerous

R. v. Evans 89

driving causing bodily harm — Accused acquitted — Evidence of witnesses aswell as Crown’s accident reconstructionist established actus reus of offence ofdangerous driving — Accused’s driving was objectively dangerous, as it ishighly dangerous to abruptly pull into passing lane on two-way highway withouthaving measure of certainty that passing lane is clear of oncoming traffic —However, mens rea of offence was not objectively proven — Degree of care ex-ercised by accused was not marked departure from standard of care, or merecarelessness or momentary lack of attention — Injured passenger testified thataccused was driving prudently and carefully for foggy conditions before she fellasleep — Accused’s decision to pass may have been consistent with simple mis-judgment of speed and distance in difficult conditions and poor visibility — Itwas not established beyond reasonable doubt that accused’s driving was charac-terized by fault element necessary to convict — Evidence did not sufficientlyidentify accused as driver of “dark truck” noticed by witness to ground findingof pattern of dangerous driving.

Cases considered by D.H. Layh J.:

R. v. Beatty (2008), 2008 SCC 5, 2008 CarswellBC 307, 2008 CarswellBC 308,57 M.V.R. (5th) 1, [2008] A.C.S. No. 5, [2008] S.C.J. No. 5, 54 C.R. (6th) 1,228 C.C.C. (3d) 225, 76 B.C.L.R. (4th) 201, [2008] 5 W.W.R. 1, 289 D.L.R.(4th) 577, 371 N.R. 119, [2008] 1 S.C.R. 49, 251 B.C.A.C. 7, 420 W.A.C. 7,179 C.R.R. (2d) 247 (S.C.C.) — followed

R. v. Higginbotham (2016), 2016 SKQB 22, 2016 CarswellSask 70, [2016] S.J.No. 53 (Sask. Q.B.) — distinguished

R. v. Reynolds (2015), 2015 SKQB 332, 2015 CarswellSask 671, [2015] S.J. No.573, 90 M.V.R. (6th) 242, [2016] 4 W.W.R. 821 (Sask. Q.B.) —distinguished

R. v. Roy (2010), 2010 BCCA 130, 2010 CarswellBC 583, 92 M.V.R. (5th) 28,285 B.C.A.C. 57, 482 W.A.C. 57 (B.C. C.A.) — referred to

R. v. Roy (2012), 2012 SCC 26, 2012 CarswellBC 1573, 2012 CarswellBC1574, [2012] S.C.J. No. 26, 345 D.L.R. (4th) 193, 281 C.C.C. (3d) 433, 28M.V.R. (6th) 1, 93 C.R. (6th) 1, 430 N.R. 201, [2012] 2 S.C.R. 60, 321B.C.A.C. 112, 547 W.A.C. 112, 259 C.R.R. (2d) 361 (S.C.C.) — followed


Criminal Code, R.S.C. 1985, c. C-46s. 249 — considereds. 249(1)(a) — considereds. 249(3) — considereds. 249(4) — considered



marked departure

To establish the mens rea [of dangerous driving], the degree of care exercised bythe accused must be a marked departure from the standard of care from the ob-jective norm, not mere carelessness or a mere departure. A marked departure isthe type of conduct that justifies criminal punishment, including a risk of impris-onment, because it attracts moral blameworthiness.

TRIAL of accused charged with two counts of dangerous driving causing deathand one count of dangerous driving causing bodily harm.

Jennifer L. Hiatt, for CrownJoelle F. Graham, for Accused

D.H. Layh J.:

Overview

The Charges against Mr. Evans1 Winston Evans was charged with two counts under ss. 249(4) of the

Criminal Code, RSC 1985 c C-46 of dangerous driving causing the deathof two passengers in his vehicle, namely Cassell J. Nightingale and BarryA. Guenther, and one count under ss. 249(3) of the Criminal Code ofdangerous driving causing bodily harm to Jennifer Victoria Hinz, thethird passenger in his vehicle.

An Overview of the Testimony

Admission of Facts2 The Crown and defence counsel provided to the court certain admis-

sions, namely that Ms. Hinz was injured while a passenger in Mr. Evans’1996 Dodge Ram truck and involved in a collision on Highway 33 themorning of October 30, 2012 and that Mr. Nightingale and Mr.Guenther, also passengers, were fatally injured in the collision.

The Geography of Highway 333 Several witnesses provided testimony at the trial and necessarily each

of them testified why they were on provincial Highway 33, the scene ofthe collision, on the morning of October 30, 2012. Different witnessesoffered approximations of distances from various entry and exit points onHighway 33 but no map was tendered in evidence showing the villagesand towns or the distances between them. I have taken judicial notice of

R. v. Evans D.H. Layh J. 91

the location and distances as described below and as found on Googlemaps. I have also noted the testimony associated with each location onHighway 33 as offered by certain witnesses, testimony which I will sum-marize later in this judgment.

Town Kms from Kms from Significance of LocationRegina Last

Location

Kronau 28.5 kms Ms. Hinz testified that she saw the roadsidesign for Kronau before falling asleep.

Chief Pritchard entered the highway fromhis acreage at Kronau.

Lajord 40.8 kms 12.3 kms Chief Pritchard testified that a dark truckpassed first one vehicle and then three vehi-cles near Lajord.

Sedley 53.9 kms 13.1 kms Collision site approximately two kilometressouth of Sedley.

Francis 67.8 kms 13.9 kms Intersection with Highway 35 to Weyburn.

Tyvan 79.2 kms 11.4 kms

Osage 92.9 kms 13.7 kms

Filmore 106.0 kms 13.1 kms Town from which Cst. Cooney was calledto attend at the scene of the collision.

Creelman 118.0 kms 12.0 kms

Stoughton 143.0 kms 25.0 kms Originating point for F. Calibaba, driver ofthe Freightliner truck involved in the colli-sion.

4 Mr. Evans picked up this three work colleagues in Regina early onthe morning of October 30, 2012, the day of his birthday. After stoppingfor coffee and cigarettes, the four of them left Regina, first going to pickup parts for a grader at White City. From there they travelled south on agrid road, intersecting Highway 33 which orients to the southeast toStoughton and northeast to Regina. Their destination that morning wastoward Stoughton where they were clay-capping a road in the rural mu-nicipality. A distinctive feature of that morning was the foggy weather,although described differently by various witnesses. As well, at all mate-rial times, including the approximate time of the collision (sometimeshortly after 7:00 a.m.) it was dark. No evidence was led respecting theexact time of sunrise on October 30, 2012.

5 No one in Mr. Evans’ truck can recount what happened when histruck collided with an oncoming Freightliner truck a few kilometres


southeast of Sedley, between Sedley and Francis, Saskatchewan. Mr. Ev-ans, although he did not give evidence at trial, provided a statement tothe police. Like many survivors of serious vehicular accidents, Mr. Ev-ans stated during his videoed interview that he had no memory of theaccident.

6 Ms. Hinz was able to give testimony about the trip until some pointafter Kronau, Saskatchewan when she fell asleep, but recalled that shesaw the sign for Kronau before falling asleep. When she received her cellphone sometime after the accident, she noted that she had received a textmessage at 7:02 a.m., by which time she would have been sleeping (butnot necessarily the time she first fell asleep).

7 Two witnesses, though, were able to provide testimony about the cir-cumstances immediately attendant upon the collision. First was the driverof the Freightliner, Mr. Calibaba, who was involved in the crash, but un-injured. He provided a statement to police the day of the accident andwas also a witness at trial. His evidence was straightforward: he saw Mr.Evans’ vehicle pull into his lane of traffic, ostensibly to pass a vehicleahead of him — a vehicle the court learned was driven by Jeremy Kuntz.Mr. Calibaba’s Freightliner bore down upon Mr. Evans’ vehicle, leavingno opportunity to avoid collision. The Freightliner came to rest on thenorthwest bound shoulder of the road and Mr. Evans’ truck spun into thenortheast side of the ditch, between the road and the railway. Mr. Evans’truck remained upright but was completely destroyed. The entire passen-ger side of the truck was torn open and the roof was pushed up and backinto the box of the truck. Mr. Guenther and Mr. Nightingale were in-stantly killed.

8 The collision occurred at a point on the highway in the interval of a167 meter, single, solid, yellow line preventing northwest bound trafficfrom passing oncoming traffic but without impediment to passing in theopposite, southeast direction (the direction of Mr. Evans’ truck when heentered the lane of oncoming traffic). Approaching the scene from thenorthwest (as Mr. Evans did), prior to the single, solid, yellow line justdescribed, the two lanes of traffic were separated by a single, dotted, yel-low line of a distance of 237 meters, allowing passing in either direction.And before this single dotted line, further to the northwest, a single,solid, yellow line, also 167 meters in length, prevented southeast boundtraffic from passing.

9 Mr. Calibaba provided specific evidence at trial which, in some im-portant aspects, was unlike any other witness’s testimony. He testified


that as he travelled from Stoughton, bound to Regina (in the oppositedirection of Mr. Evans’ vehicle), approaching the scene of the pendingcollision, the foggy conditions had improved to the extent that he wastraveling over 100 kilometres per hour, perhaps 102 kilometres per hour.Furthermore, even though other vehicles had passed him on the highwayprior to the collision scene, he testified that he was not alarmed by theirdriving. He testified that after vehicles passed him he could see their tail-lights for approximately one mile ahead. He also testified that in mostfoggy conditions, a driver of a semi-tractor, although sitting higher thanan ordinary vehicle, often does not have better visibility in fog.

10 The second witness, Mr. Kuntz, testified differently than Mr.Calibaba about the fog conditions at the scene of the accident. Mr. Kuntzand his two passengers were on their way from Regina to Weyburn thatmorning to work on the construction of a new school. He testified that hewas traveling at approximately 85 kilometres per hour for the entire trip.About 10 minutes before Sedley and about two minutes after Sedley (ap-proaching Francis), Mr. Kuntz noticed a vehicle behind him (Mr. Evans’vehicle), following him at a distance he estimated to be about 20 feet.Mr. Kuntz testified that he could see that this vehicle had come over thecentre line in an apparent attempt to see if the oncoming traffic wouldpermit him to pass. He knew this because he could see only one head-light each time he looked out either of his side view mirrors. Mr. Kuntzcould not recall how many times the vehicle pulled out — at least once,but maybe more often. When asked in examination whether he mighthave seen the vehicle pull out more than once, he testified that he couldnot say for certain. Mr. Kuntz saw the headlights of the Freightliner ap-proaching him in the opposite lane, when the Freightliner was about fouror five car lengths before his vehicle. Momentarily, he saw the vehiclebehind him commit to passing him. Mr. Kuntz said he heard the crash ofthe collision behind him, but did not see it. He pulled over to the side ofthe highway and called 911. Being advised by the dispatcher to continue,he then proceeded to Francis and turned off Highway 33, southbound toWeyburn.

11 Three other witnesses for the Crown provided testimony: ConstableCooney, the attending R.C.M.P. officer who left his home in Fillmore,Saskatchewan upon being dispatched by 911 at approximately 7:12 a.m.,and arrived at the scene at approximately 8:00 a.m.; Chief Pritchard ofthe Weyburn City Police (and not in his official capacity, but as a motor-ist on Highway 33, en route from his home near Kronau to work in Wey-burn); and Corporal LePage, an R.C.M.P. accident reconstructionist who


arrived from Prince Albert, Saskatchewan at the accident scene at ap-proximately 12:10 p.m.

12 Defence called one witness, Murray Klatt, a retired accident recon-structionist, formerly employed with the R.C.M.P.

The Issues13 The injury of Ms. Hinz and the tragic deaths of Mr. Guenther and Mr.

Nightingale are apparent and admitted. Therefore, the sole questionbefore me is whether, under s. 249 of the Criminal Code, Mr. Evanscaused the deaths and injury of his three passengers by dangerous driv-ing, as that term is legally defined.

14 The relevant provisions of the Criminal Code state: 249 (1) Every one commits an offence who operates

(a) a motor vehicle in a manner that is dangerous to the public,having regard to all the circumstances, including the nature,condition and use of the place at which the motor vehicle isbeing operated and the amount of traffic that at the time is ormight reasonably be expected to be at that place;

. . .

(3) Every one who commits an offence under subsection (1) andthereby causes bodily harm to any other person is guilty of an indict-able offence and liable to imprisonment for a term not exceeding tenyears.

(4) Every one who commits an offence under subsection (1) andthereby causes the death of any other person is guilty of an indictableoffence and liable to imprisonment for a term not exceeding fourteenyears.

The Analysis

The Actus Reus15 Before Mr. Evans’ driving can attract criminal liability under s. 249,

the Crown must prove, beyond a reasonable doubt, that he committed theprohibited act of dangerous driving, the actus reus. The Crown must alsoprove, beyond a reasonable doubt, that Mr. Evans had a wrongful inten-tion in committing the act, the mens rea. Respecting the necessary proofof mens rea, unlike some other types of criminal offences where the ac-cused’s subjective intent must be proven, a driver of a vehicle will gener-ally not intend to create a serious collision. Accordingly, the mens reamust be objectively proven and, as the Supreme Court of Canada has


illustrated in its statements in the leading decision of R. v. Roy, 2012SCC 26, [2012] 2 S.C.R. 60 (S.C.C.) [Roy], in proving the mens rea theCrown must satisfy an exacting standard.

16 Respecting the actus reus, in this instance, the Crown must prove thatMr. Evans drove dangerously. Subsection 249(1)(a) of the CriminalCode specifically states what must be proven to establish the act: did theaccused drive in a manner dangerous to the public, having regard to allthe circumstances, including the nature, condition and use of the place atwhich the motor vehicle was being operated and the amount of trafficthat at the time was or might reasonably have been expected to be at thatplace?

17 At para 34 of Roy, Justice Cromwell explained the requirement ofproving the actus reus, stating that the trier of fact must not focus on theconsequences of the driving, but rather on the risks created by the ac-cused’s manner of driving. Citing Justice Charron in R. v. Beatty, 2008SCC 5, [2008] 1 S.C.R. 49 (S.C.C.), he stated that the court must make ameaningful inquiry into the manner of driving and not leap to a conclu-sion based on the consequence of the driving. He continued his explana-tion, focusing again on the objective manner of driving, not the serious-ness of the accident:

A manner of driving can rightly be qualified as dangerous when itendangers the pubic. It is the risk of damage or injury created by themanner of driving that is relevant, not the consequences of a subse-quent accident. In conducting this inquiry into the manner of driving,it must be borne in mind that driving is an inherently dangerous ac-tivity, but one that is both legal and of social value... Accidentscaused by these inherent risks materializing should generally not re-sult in criminal convictions.

18 So, in this case, neither the tragic deaths of Mr. Guenther and Mr.Nightingale, nor the serious injuries to Ms. Hinz, can be the measurewhether Mr. Evans drove dangerously. Death and injury can result frommany types of motor vehicle accidents. The actus reus of the offence ofdangerous driving is whether the driving is objectively dangerous in thecircumstances.

19 I find that the testimony provided by the only observers of the situa-tion immediately before the collision establishes that Mr. Evans’s drivingwas objectively dangerous. Their testimony paralleled the findings of theaccident reconstructionist, Cpl. LePage, who attended the scene and pro-vided an expert’s report stating that the area of impact occurred along the


fog line (white line on the shoulder of the road) in Mr. Evans’ passinglane (in the lane of the oncoming Freightliner)

20 Mr. Kuntz testified that he saw the headlights of the oncomingFreightliner approaching about four or five car lengths ahead of his vehi-cle and almost immediately thereafter noticed that Mr. Evans’ vehiclehad pulled out to pass. I find that Mr. Evans’ driving, when he pulled outto pass Mr. Kuntz’s vehicle and directly into the oncoming Freightliner,satisfies the test that his driving was dangerous, regardless of the resul-tant, albeit, in this case, catastrophic, consequences of the collision.

21 I make this finding irrespective of the extent of the fog that existed atthe time of the collision; whether, as Mr. Calibaba testified, the fog hadsignificantly lifted at that time of the collision or, as other witnesses (par-ticularly Mr. Kuntz and Cst. Cooney) testified, that the fog was still prev-alent. Given any existing visibility factors — day or night, fog orclear — it is highly dangerous to abruptly pull into a passing lane on atwo-way highway without having a measure of certainty that the passinglane is clear of oncoming traffic.

The Mens Rea22 Having found the requisite act, I must now turn to the mens rea or the

fault element of Mr. Evans’ driving. The Supreme Court of Canada hasemphasized in Beatty and four years later in Roy that a “meaningful anal-ysis of both elements [must be] ...performed in every case... by definingand separating the conduct and mental elements of the offence” (Roy atpara 27).

23 To ensure that triers of fact appreciate the nuances of the second ele-ment of the offence — the fault element — the Supreme Court has givenexplicit instructions in Roy (really a reiteration and closer examination ofthe court’s earlier statement in Beatty) to avoid the conclusion that, hav-ing found the act of dangerous driving, the requisite fault element neces-sarily follows. The temptation is to conclude that the mere act of danger-ous driving also shows that the requisite fault element, the mens rea, hasbeen established.

24 Perhaps most helpful to the instant case is understanding what princi-ples and facts the Supreme Court has said triers of fact should identifyand apply in determining whether the mens rea has been established and,equally importantly, what the Supreme Court has discounted as incom-plete or inaccurate facts and principles in determining whether the neces-sary mens rea has been established.


25 To establish the mens rea, the degree of care exercised by the accusedmust be a marked departure from the standard of care from the objectivenorm, not mere carelessness or a mere departure. A marked departure isthe type of conduct that justifies criminal punishment, including a risk ofimprisonment, because it attracts moral blameworthiness. The fault mustbe based on conduct that merits punishment (Beatty at para 35). “Mo-mentary lapses of attention...generally will not rise to the level of amarked departure required for a conviction for dangerous driving”(Beatty at para 71). Momentary lapses of attention occasion many typesof accidents, some with minimal consequences, but some with grave con-sequences. The consequence of the accident, however, cannot establishthe moral culpability necessary to ground a conviction.

26 I find the application of these instructions from the Supreme Courthighly fact-dependent and nuanced. Learned authors have commented onthe instructions in Beatty and Roy. Don Stuart in Canadian CriminalLaw, 7th ed (Toronto: Carswell, 2014) at 288 - 289 has provided a factualsynopsis of Beatty and a commentary of the implications of the decision,as follows:

The decision in Beatty on the facts seems, however, startlingly leni-ent. The accused veered off into the wrong lane and killed three per-sons in the oncoming lane. He had no explanation for his conductother than that he had been working in the sun and may have lostconsciousness or fallen asleep. The Court held that a momentary lackof attention was not a marked departure from the objective norm.Given Beatty, expect defences of momentary inattention to be fre-quently advanced against dangerous driving charges. In Beatty therewas no evidence of any other bad driving. However, most major ve-hicle accidents happen in a flash and proof of a pattern of bad drivingthat day will often be hard to come by with witnesses long gonedown the highway. Given the lenient ruling on the facts, one can ex-pect that many serious accidents on highways, even those involvingfatalities, will now almost always have to be dealt with by charge ofcareless driving under provincial laws which usually only requireproof of ordinary negligence. The maximum penalties are typicallyas low as six months.

27 The learned author’s characterization of the principle emerging fromBeatty is that the necessary culpability to establish the mens rea of dan-gerous driving rests with proof of “any other bad driving,” or a “patternof bad driving that day” and not a “momentary lack of attention.”


28 Roy followed Beatty and allowed the Supreme Court of Canada toessentially restate its earlier direction. In Roy, the driver pulled hismotorhome out from a stop sign, intending to turn left onto the Yel-lowhead Highway. A tractor-trailer unit, traveling at a reduced speed be-cause of fog, struck Roy’s vehicle, killing his passenger. The visibilitywas “poor” due to fog and the road approaching the highway was snow-covered, steep and slippery. The driver and passenger of the tractor-trailer unit saw the headlights of Roy’s vehicle and when the driver real-ized that Roy’s vehicle was proceeding onto the highway, applied hisbrakes, but it was too late. Roy had no recollection of the accident. TheBritish Columbia Court of Appeal upheld the trial judge’s finding ofguilt, a finding the Supreme Court of Canada rejected, offering that onecannot infer a marked departure from an objective norm simply from thefact that the driving was, objectively viewed, dangerous. Justice Crom-well wrote:

[42] Driving which, objectively viewed, is simply dangerous, will noton its own support the inference that the accused departed markedlyfrom the standard of care of a reasonable person in the circumstances(Charron J. [in Beatty], at para. 49; see also McLachlin C.J., at para.66, and Fish J., at para. 88). In other words, proof of the actus reus ofthe offence, without more, does not support a reasonable inferencethat the required fault element was present. Only driving that consti-tutes a marked departure from the norm may reasonably support thatinference.

. . .

46 ... As explained above, the trial judge inferred the necessary faultelement simply from the fact of dangerous deriving. As Beatty makesclear, this is an error of law.

29 Justice Cromwell went on to consider the position taken by the Brit-ish Columbia Court of Appeal (which upheld the trial judge’s conviction)(2010 BCCA 130 (S.C.C.)). The Court of Appeal saved the trial judge’sfinding, believing that although the trial judge did not specifically ad-dress the fault element, fault was easily inferred from the judge’s rea-sons. In supporting the conviction, the Court of Appeal found that Mr.Roy’s driving was not inadvertent negligence. Rather, in support of thetrial judge’s finding of fault, the appellate court found, “the driving thatresulted in the collision entailed a deliberate act of driving onto a busyhighway, in fog, in the face of oncoming traffic.” The Court of Appealstated at para. 31, “The trial judge correctly concluded that the appel-lant’s driving did constitute a marked departure from the standard of care


of a reasonable person in the circumstances of the appellant, thus satisfy-ing the test for mens rea.”

30 Justice Cromwell disagreed with the Court of Appeal’s endorsementof the trial judge’s finding that proof of a deliberate act, normatively dan-gerous, was proof of the necessary mens rea. He entered an acquittal andoffered statements that, when applied to the case at hand, are highly in-structive. I quote and emphasize at length Justice Cromwell’s statements:

54 In my view, the record does not provide evidence on which aproperly instructed trier of fact, acting reasonably, could concludethat the appellant’s standard of care was a marked departure fromthat expected of a reasonable person in the circumstances. I acceptthat the driving, objectively viewed, was dangerous. But it must benoted that there was no evidence that the driving leading up topulling into the path of oncoming traffic was other than normaland prudent driving. The focus, therefore, is on the momentarydecision to pull onto the highway when it was not safe to do so. Ido not think that the manner of driving, on its own, supports areasonable inference that the appellant’s standard of care was amarked departure from that expected of a reasonable driver inthe same circumstances.

[55] Taking the Crown’s case at its highest, the appellant pulled outfrom a stop sign at a difficult intersection and in poor visibility whenit was not safe to do so. Although the trial judge did not make aspecific finding on the point, Mr. McGinnis (the driver of the tractor-trailer) thought that the appellant’s vehicle had stopped before pro-ceeding onto the highway. Mr. McGinnis also testified that when hefirst saw the lights of the appellant’s vehicle, he guessed that it wasabout 300-400 feet away but that it could have been as little as 100feet. It is, of course, reasonable to assume that the appellant couldhave seen the McGinnis vehicle at least as soon as Mr. McGinniswas able to see the appellant’s vehicle. Given the lighting on the trac-tor-trailer, it might be concluded that the tractor-trailer may havebeen visible somewhat sooner. However, on any realistic scenarioconsistent with the evidence, the time between visibility and impactwould be only a few seconds. In my view, the appellant’s decisionto pull onto the highway is consistent with simple misjudgment ofspeed and distance in difficult conditions and poor visibility. Therecord here discloses a single and momentary error in judgmentwith tragic consequences. It does not support a reasonable infer-ence that the appellant displayed a marked departure from thestandard of care expected of a reasonable person in the same cir-


cumstances so as to justify conviction for the serious criminal of-fence of dangerous driving causing death.

[Emphasis added.]

31 I have analysed and studied Justice Cromwell’s statements and find Iagree with the assessment of those statements as provided by ProfessorJanine Benedet of the Faculty of Law at the University of British Colum-bia. She has written about the application of Roy as follows ((2012), 93C.R. (6th) 1 (S.C.C.) at 2-3):

Roy is a short decision notable for providing a clear and unanimousstatement of the law applicable to the offence of dangerous driving,which has provided fodder for debate and disagreement in past cases.The Supreme Court makes clear that the actus reus of dangerousdriving is not the same as the mens rea, and that the mens rea is noteasy to prove. The actus reus of the offence is whether the driving isobjectively dangerous in the circumstances. Pulling out into oncom-ing traffic, in a motorhome, in fog and snow, without enough timefor oncoming traffic to stop, is objectively dangerous.

The temptation is to conclude that such driving must also be amarked departure from the actions of the reasonable person and thusthat the mens rea is also proven. Justice Cromwell clearly rejects thisand defines the marked departure more broadly by looking at the ac-cused’s conduct leading up to the accident. It appears that if thewhole trajectory of the driving is more or less normal, a momentarydecision to do something dangerous, even if it results in tragic conse-quences, will be viewed as an error in judgment that will not attractcriminal liability. Notably, the Supreme Court enters an acquittal onthese facts, even though the accused was convicted at trial and thatthe conviction was affirmed by the Court of Appeal.

...The implication seems to be that the dangerous conduct must per-sist over some period of time, or that there must be other indicatorsof dangerousness, beyond the immediate explanation for the accidentitself.

32 Of some significance, too, Mr. Roy’s licence to drive was suspendedat the time of the accident. I agree with Professor Benedet’s further com-ment that one might argue that the reasonable person with a suspendedlicence does not drive at all.

33 That Mr. Evans committed a dangerous act while driving is indisputa-ble. But this is not the test for finding the necessary mens rea. I mustdetermine, as Justice Cromwell has stated, whether (to use his directwords) “the driving up to [the time of] the pulling into the path of the


oncoming traffic was other than normal and prudent driving.” Or, as Pro-fessor Benedet has correctly summarized, I must determine whether thedangerous driving “..persist[ed] over some period of time,” or whetherthere were “other indicators of dangerousness, beyond the immediate ex-planation for the accident itself.”

34 Ms. Hinz, a Crown witness, testified that Mr. Evans was driving pru-dently and carefully for the foggy conditions. She described “thick fog”that morning as they left Regina, en route to White City, then south on agrid road to Highway 33. She testified that she had confidence in Mr.Evans’ driving that morning, otherwise she would not have felt comfort-able enough to allow herself to go to sleep. She agreed that she ordinarilypaid attention to a driver’s driving and she would have commented toMr. Evans if she thought he was driving inappropriately or she may evenhave “scuffed” him on the back of the head if she thought he needed tobe reminded to drive more carefully. She testified that Mr. Evans had notpassed anyone while she was awake and that he was driving under thespeed limit. She compared Mr. Evans’ driving with another driver withwhom she had driven to Stoughton on other occasions, testifying thatwhile she was concerned about the other person’s driving, she was notconcerned about Mr. Evans’ driving. She testified that Mr. Evans wasdriving cautiously for the conditions and under the speed limit.

35 Ms. Hinz fell asleep sometime after Kronau and, as she testified,woke up five days later in the Regina General Hospital. Her evidence isthe most direct evidence presented to the court about Mr. Evans’ driving.Albeit, if Ms. Hinz fell asleep after Kronau, the accident scene was stillapproximately 25 kilometres distant and Mr. Evans might have changedhis driving conduct. However, before she had fallen asleep, she had al-ready observed Mr. Evans’ driving from Regina to White City and fromWhite City down the grid road and then to Kronau. During that time Ms.Hinz made her assessment of Mr. Evans’ driving and agreed that he wasdriving cautiously, appropriate for the road conditions and had notpassed any vehicles.

36 Mr. Kuntz testified that he observed Mr. Evans following him for ap-proximately 12 minutes, 10 minutes before Sedley and two minutes afterSedley, until Mr. Evans pulled out, ostensibly to pass him. Mr. Kuntzcould not say how many times he saw Mr. Evans’ lights in his mirrorveer over in an apparent attempt to see if the oncoming traffic was clear.Mr. Kuntz testified that Mr. Evans was not being aggressive, but only


“bowing out and coming back in.” When asked how many times Mr.Evans may have pulled over, Mr. Kuntz simply said he could not recall.

37 At this crucial time, on the brink of the collision, the Crown’s wit-nesses — Mr. Kuntz and Mr. Calibaba — provide conflicting evidenceabout the fog conditions. Mr. Kuntz testified that the fog was still heavyenough that he was driving about 85 kilometres per hour; Mr. Calibabatestified that the fog had significantly lessened and he was driving over100 kilometres per hour with taillights visible for approximately onemile. If Mr. Calibaba’s testimony is correct and he could see taillights fora distance of one mile, then headlights should have been equally visibleto Mr. Evans for a similar distance. Accordingly, Mr. Evans’s decision topass, after apparently checking the traffic in the on-coming lane, mayhave been similar to Justice Cromwell’s characterization of Mr. Roy’sdriving: a “single and momentary error.” I find that Mr. Evans’ commit-ment to pass Mr. Kuntz, as Justice Cromwell found in Roy, may havebeen equally “consistent with simple misjudgment of speed and distancein difficult conditions and poor visibility.” I am not convinced beyond areasonable doubt that Mr. Evans’ driving was characterized by the faultelement necessary to convict.

38 I have also considered the testimony of Chief Pritchard of the Wey-burn City Police. He gave evidence that he left his home outside ofKronau at approximately 7:00 a.m., driving his usual route to Weyburn.Shortly after he pulled onto Highway 33, and two or three kilometresbefore Lajord, in what he testified was extremely heavy fog, he caughtup to the traffic. Upon doing so, he noticed a dark-coloured truck travel-ing ahead of him. He thought, by the shape of the taillights, that it mighthave been a Dodge truck, but he was unsure. He also testified that thetruck could have been either a half ton or a three-quarter ton truck andboth were commonplace in Saskatchewan. It was dark and foggy so hecould not see the licence plate, nor how many occupants were in thetruck. He could not tell if the truck was an extended cab or full four-doored truck. He testified that he encountered the truck before Lajordand followed it for two or three kilometres. Before Lajord, the truck pul-led out and passed one vehicle in front of it. Chief Pritchard testified thathe continued to observe the dark truck and stated that it pulled over thecentre line a number of times (two, three or five times — he was unsure)and then accelerated and passed three vehicles ahead of it, just past thecurve, beyond Lajord. With four vehicles between himself and the darktruck, Chief Pritchard then lost sight of the truck and continued southeaston Highway 33. No question was asked of Chief Pritchard whether he


could identify the makes or models of any of the four vehicles that sepa-rated him from the dark truck. I find that if Chief Pritchard was unable toidentify the characteristics of the vehicle in front of him — other than itwas a dark truck — he, similarly, would have been unable to identify theintervening four vehicles.

39 Chief Pritchard estimated that about 15 kilometres distant from theplace he saw the dark truck pass the three vehicles he came over a slightrise and upon the collision scene, arriving at approximately 7:20 a.m. to7:30 a.m. He testified that when he stopped at the scene, one vehicletraveling northwest on the highway had already stopped and was givingCPR to one of the passengers of Mr. Evans’ vehicle. Chief Pritchard con-firmed with this person that he had already called 911. Chief Pritchardstayed at the scene of the collision until approximately 9:00 a.m., imme-diately managing the crash scene and then assisting other emergency per-sonnel who arrived on the scene.

40 I cannot accept as a fact that the dark-coloured truck Chief Pritchardobserved near Lajord passing other vehicles was Mr. Evans’ truck.Among Chief Pritchard’s own admissions of the frailty of his ability toidentify the truck involved in the collision — whether it was a half-ton orthree-quarter ton, whether an extended cab or four-door, whether blackor another dark colour — other possibilities exist which obligate me toquestion whether the vehicle that was aggressively passing other vehicleswas Mr. Evans’ truck. First, as admitted by Chief Pritchard, the darktruck could have exited the highway on any grid road (he having esti-mated that grid roads accessed the highway every two miles). As well, ifMr. Evans’ vehicle was the one that had passed four other vehicles andwas the one involved in the collision, necessarily the four interveningvehicles (so long as they had not turned off the highway) would have hadto pass through the collision scene without stopping. Mr. Kuntz did nottestify whether anyone else had passed him that morning so, perhaps, theaggressively driven dark truck may have passed both Mr. Kuntz and Mr.Evans.

41 Accordingly, given the totality of Chief Pritchard’s evidence, I cannotconclude that it establishes that Mr. Evans was the driver of the darktruck. Consequently, I have a reasonable doubt that his evidence estab-lished that Mr. Evans’ driving showed a pattern of dangerous driving thatmorning. As well, Chief Pritchard entered Highway 33 at about the sametime as Ms. Hinz testified she fell asleep. Her testimony was clear that


Mr. Evans was driving cautiously and that he had not passed any vehi-cles to that point.

42 Mr. Klatt gave expert evidence of behalf of Mr. Evans. Mr. Klatt is aretired R.M.C.P. officer who testified that he attended over 400 fatal ac-cident scenes as an accident reconstructionist. He provided evidence thatas a motorist approaches the collision scene from the northwest (in thedirection of travel taken by Mr. Evans), the highway rises to a slightcrest. If a driver approaching this crest were to pull over toward the cen-tre line to check the oncoming traffic lane, one might, in the dark, see theheadlights of a vehicle some distance ahead. However, one might not seein the dip beyond the crest a vehicle which would necessarily be muchcloser — this vehicle theoretically being the Freightliner.

43 I place little import on Mr. Klatt’s testimony to explain how Mr. Ev-ans may have been misled to think entering the lane of oncoming trafficin an apparent attempt to pass Mr. Kuntz’s vehicle was safe. First, histestimony required an assumption that the Freightliner was in the “dip”and its headlights not visible. Second, it required an assumption that Mr.Evans would have checked to see if it was safe to pass at a point on thehighway where a solid line prevented vehicles from passing and somedistance before the collision. Third, it required a further assumption thatthe headlights of a vehicle, some distance to the southeast, beyond theFreightliner and visible to Mr. Evans, would have given Mr. Evans afalse sense that it was safe to pass.

44 I have also reviewed the recent decisions of Justice Acton in R. v.Higginbotham, 2016 SKQB 22 (Sask. Q.B.) [Higginbotham] and R. v.Reynolds, 2015 SKQB 332, [2016] 4 W.W.R. 821 (Sask. Q.B.) [Reyn-olds] in which convictions for dangerous driving were entered against theaccused. Justice Acton, like I, framed his analysis around Roy. The factsof Higginbotham and Reynolds were crucially different than in the in-stant case, including the fact that the accused in each case recalled thecollisions and provided testimony. In my respectful view, the analysis inthis decision is consonant with the analysis in both Higginbotham andReynolds, although I have necessarily reached a different result.

Conclusion45 The accused, Winston C. Evans, is acquitted of all counts of danger-

ous driving.

Accused acquitted.

R. v. Algafori 105

[Indexed as: R. v. Algafori]

Her Majesty the Queen, Appellant and Hersham Algafori,Respondent

Ontario Superior Court of Justice

Docket: 14-9461

2016 ONSC 3029

L. Ratushny J.

Heard: April 27, 2016


Criminal law –––– Offences — Operation of motor vehicle while disquali-fied — Presumption of disqualification — Certificate of disqualification —Admissibility of certificate –––– Accused drove while disqualified from operat-ing motor vehicle pursuant to earlier conviction — Accused was served with no-tice of intent to produce documents and/or records well in excess of seven daysminimum required under Canada Evidence Act — Copy of order of prohibitionwas attached, except it was police force copy not bearing accused’s signature —Crown later served accused with certified copy of same prohibition order butthis time as signed by accused, and tried to file certified copy at trial — Defencecounsel objected to admissibility of certified copy — Trial judge ruled that certi-fied copy was inadmissible because accused had not been put on notice thatsigned copy of prohibition order would be placed before court at trial — Ac-cused was acquitted of operating motor vehicle while disqualified — Crown ap-pealed — Appeal allowed; accused convicted — Certified copy of prohibitionorder was admissible at trial pursuant to s. 28 of Canada Evidence Act — Be-cause reasonable notice issue was dispositive of trial, it followed that verdictwould not necessarily have been same but for error in law — In focusing onissue of lack of signature, trial judge failed to weigh all evidence of notice inassessing whether there had been reasonable notice and thereby erred in law —By her ruling trial judge was effectively requiring exact copy of prohibition or-der to be attached to notice of intent for there to be compliance with and reason-able notice under s. 28, which was not correct — It was evident that notwith-standing lack of accused’s signature on prohibition order attached to notice ofintent that there was no confusion over prohibition order that would be enteredby way of certified copy at trial — Had trial judge correctly applied standard ofreasonable notice, she would have concluded that accused or his counsel hadreasonably been put on notice that certified copy of prohibition order might beused at trial.


Cases considered by L. Ratushny J.:

R. v. Dixon (2006), 2006 NBQB 197, 2006 CarswellNB 308, 304 N.B.R. (2d)290, 788 A.P.R. 290, [2006] N.B.J. No. 232 (N.B. Q.B.) — followed

R. v. Good (1983), 6 C.C.C. (3d) 105, 44 A.R. 393, 25 M.V.R. 73, 1983CarswellAlta 240, [1983] A.J. No. 797, 1983 ABCA 141 (Alta. C.A.) —followed

R. v. Morrison (1982), 42 N.B.R. (2d) 271, 110 A.P.R. 271, 70 C.C.C. (2d) 193,1982 CarswellNB 135, [1982] N.B.J. No. 321 (N.B. C.A.) — followed

R. v. Zorlescu (2015), 2015 ONSC 3458, 2015 CarswellOnt 8579, [2015] O.J.No. 2932, 82 M.V.R. (6th) 160 (Ont. S.C.J.) — followed


Canada Evidence Act, R.S.C. 1985, c. C-5Generally — referred tos. 24 — considereds. 28 — considered

Criminal Code, R.S.C. 1985, c. C-46s. 259(4) — pursuant to

APPEAL by Crown from acquittal of accused charged with operating motor ve-hicle while disqualified.

Matthew Geigen-Miller, for CrownSamantha Robinson, for Respondent

L. Ratushny J.:

1 The Crown appeals the respondent’s acquittal of the charge of operat-ing a motor vehicle while disqualified contrary to s. 259(4) of the Crimi-nal Code, RSC 1985, c C-46, and requests a conviction be substitutedand the matter remitted to the trial judge for sentencing.

Background Facts2 At trial there was no dispute that the accused/respondent had been

driving on the day of the offence. There was also no dispute that he hadbeen disqualified from operating a motor vehicle pursuant to an earlierconviction on December 2, 2013 for a drinking and driving offence and amandatory driving prohibition order made on that same date.

3 The only trial issue was whether the accused had received reasonablenotice of the Crown’s intent to tender a certified copy of the prohibitionorder at trial as required by sections 24 and 28 of the Canada Evidence

R. v. Algafori L. Ratushny J. 107

Act, RSC 1985, c C-5, so that a certified copy could be admitted as evi-dence of that essential element of the offence. These sections state:

24 In every case in which the original record could be admitted inevidence,

(a) a copy of any official or public document of Canada or of anyprovince, purporting to be certified under the hand of theproper officer or person in whose custody the official or pub-lic document is placed, or

(b) a copy of a document, by-law, rule, regulation or proceeding,or a copy of any entry in any register or other book of anymunicipal or other corporation, created by charter or Act ofParliament or the legislature of any province, purporting to becertified under the seal of the corporation, and the hand of thepresiding officer, clerk or secretary thereof is admissible inevidence without proof of the seal of the corporation, or ofthe signature or official character of the person or persons ap-pearing to have signed it, and without further proof thereof.

. . .

28 (1) No copy of any book or other document shall be admitted inevidence, under the authority of section 23, 24, 25, 26 or 27, on anytrial, unless the party intending to produce the copy has before thetrial given to the party against whom it is intended to be producedreasonable notice of that intention.

(2) The reasonableness of the notice referred to in subsection (1)shall be determined by the court, judge or other person presiding, butthe notice shall not in any case be less than seven days.

4 It is clear and well-understood from these sections that a certifiedcopy of the prohibition order was admissible at trial in place of the origi-nal prohibition order provided the accused had received “reasonable no-tice” of not less than seven days of the Crown’s intention to produce thatcertified copy at trial.

5 At trial the Crown established that a “Notice of Intent to ProduceDocuments and/or Records” had been served on the accused well in ex-cess of the seven days minimum required under the Canada EvidenceAct. That Notice of Intent, filed as Exhibit 1, specified the document in-tended to be produced at trial as an “Order of prohibition and notice Dec2nd 2013”. A copy of the order of prohibition was attached, except it wasa police force copy not bearing the accused’s signature.

6 There was no dispute that the order of prohibition attached to the No-tice of Intent was the order that was eventually signed by the accused.


That attached prohibition order recited the name of the accused, his con-viction for the drinking and driving offence that had led to the prohibi-tion order, notice that its breach would attract another criminal offence,the date of the prohibition order and where it had been imposed. In otherwords, the prohibition order attached to the Notice of Intent was correctin all respects except it did not contain the accused’s signature.

7 Two days before the trial the Crown served defence counsel with acertified copy of the same prohibition order but this time as signed by theaccused. At trial the Crown sought to file that certified copy.

8 Defence counsel objected to its admissibility, submitting that becausethe certified copy of the prohibition order was not the same document ashad been attached to the Notice of Intent, the accused had been misledand had not been given “reasonable notice” as required by the CanadaEvidence Act.

9 The trial judge agreed that sections 24 and 28 of the Canada Evi-dence Act governed the issue of the admissibility of the certified copy ofthe prohibition order.

10 She ruled the certified copy was inadmissible because the Notice ofIntent had attached a copy of the prohibition order that was unsigned bythe accused, with the result that the accused had not been put on noticethat a signed copy of it would be placed before the court at trial. Shedetermined this had the possibility of changing the accused’s defence andwas, therefore, prejudicial.

11 It was on the basis of this ruling, without there being evidence of theaccused having been disqualified from driving, that he was acquitted.

Grounds of Appeal12 The Crown alleges the trial judge erred in law by misapplying the

standard of reasonable notice when she refused to admit the certifiedcopy of the prohibition order.

13 The respondent argues this appeal issue of reasonable notice is aquestion of fact properly left to the trial process where the trial judge canbe presumed to have weighed the evidence before her and made a findingof fact. Alternatively, the respondent says, if the appeal involves an issueof law the Notice of Intent was misleading and confusing and, therefore,unreasonable.


Analysis

Basis Legal Principles14 This appeal engages at least four basic legal principles in dealing with

issues arising out of sections 24 and 28 of the Canada Evidence Act.15 The first is the sometimes “opaque” distinction between law and fact

for appeal purposes: R. v. Good, 1983 ABCA 141, 44 A.R. 393 (Alta.C.A.) at para 9, also referring to LaForest, J.A. in R. v. Morrison (1982),42 N.B.R. (2d) 271, 110 A.P.R. 271 (N.B. C.A.) at para 15:

Distinctions between law and fact are often opaque and no less so incases devoted to the question of reasonable notice of the intended useof documentary evidence, otherwise hearsay, but made admissible bystatutory authority. While the sufficiency of notice is, generallyspeaking, a pure question of fact properly left to the trial process itmay become a question of law, or at least mixed law and fact, ac-cording to the means by which the trial judge reached his finding.The distinction was addressed by LaForest, J.A. in Regina v. Morri-son (supra) where at p. 199 he noted

If having weighed the evidence the trial judge concludesthat in the circumstances of the case notice is not reasona-ble that will be a question of fact or at most one of mixedfact and law against which there is no appeal so long atleast as there is some evidence that will support his find-ing. But here the judge did not weigh the evidence at all.After an examination of the case law he made the seriesof rulings from which appeal has been taken in this case.The judge was thereby instructing himself as to whatcould constitute reasonable notice, and in doing so heerred in law. At no time in his judgment did he considerthe weight of the evidence as it was his duty to do. Hefailed to consider whether the facts before him constitutedreasonable notice because of his view of the meaning of‘reasonable notice’ as used in the Act. This was a ques-tion of law alone. The trial judge simply thought theywere legal impediments to his considering the facts beforehim.

16 The second is the test for reasonable notice as stated in Good at para7:

...The real test is that the notice must be reasonable in time and sub-stance and must not be misleading, confusing or otherwise prejudi-cial. It must clearly and precisely bring home to the accused that thecertificate may be used in relation to a charge arising from the inci-


dent. No particular form of notice is required and there is no inflexi-ble legal presumption that any explanatory words accompanying ser-vice will dilute the clear wording of the notice. Some words may. Forexample, advice given a suspect in direct contradiction to the form ofthe notice, could well support a finding of ambiguity. Whether noticeis reasonable should be a question of fact in each case where the ob-jection is taken. Then all evidence pertaining to the issue must beweighed by the trial judge before the certificate will be deemed ad-missible in evidence. However, given a printed notice clear and im-pactive on its face together with early and proper service thereof, afinding of confusion or ambiguity in the absence of defence evidenceto that effect would be rare indeed.

17 The third is the refusal of appellate courts to “invalidate notices onmere technical objection that the procedure left something to be de-sired...” because the utility of provisions allowing for a simplification inthe production of evidence “is not to be diluted by an insistence onperfection” (Good at para 7).

18 The fourth is the reminder from R. v. Dixon, 2006 NBQB 197, 304N.B.R. (2d) 290 (N.B. Q.B.) at para 13, that section 28 of the CanadaEvidence Act does not require the service of an actual certified copy ofthe order in question, only reasonable notice of the intention to admitinto evidence a certified copy of it.

Error of Law19 Applying these basic principles to this appeal, the issue of the admis-

sibility of a certified copy of the prohibition order under sections 24 and28 of the Canada Evidence Act is clearly a question of law.

20 As noted in Morrison at para 14, however, “the preliminary findingsof fact and inferences to support a decision to admit or reject evidencemay be questions of fact or at least of mixed fact and law...” and the“question whether a notice is or is not reasonable for the purpose of ad-mitting a certificate...may, therefore, be a question of mixed fact and law.Whether it is or not depends on how the judge arrives at that conclusion.”

21 In reviewing how the trial judge arrived at her conclusion of inadmis-sibility, the trial transcript and her ruling reveal that the focus had nar-rowed down to the issue of the missing signature on the prohibition orderattached to the Notice of Intent. Defence counsel had characterized thisas amounting to a document that was not the “same” as the certified copyof the prohibition order and as such, that the accused had been “misled”.


The trial judge accepted this and ruled the certified copy as inadmissiblebecause of prejudice to the accused’s defence.

22 The Crown submits the trial judge did not consider and weigh all theevidence of notice to consider whether the accused had received reasona-ble notice that a certified copy of the prohibition order would be tenderedat trial. Instead, she concentrated her analysis on the single issue of themissing signature, characterizing the certified copy as not being the sameprohibition order as attached to the Notice of Intent and in so doing, in-correctly applied the standard of reasonable notice when she refused toadmit the certified copy.

23 As stated in Morrison at para 15: If having weighed the evidence, the trial judge concludes that in thecircumstances of the case the notice is not reasonable, that will be aquestion of fact or at the most one of mixed fact and law againstwhich there is no appeal so long at least as there is some evidencethat will support his finding. But here the judge did not weigh theevidence at all. After an examination of the case law, he made theseries of rulings from which appeal has been taken in this case. Thejudge was thereby instructing himself as to what could constitute rea-sonable notice, and in doing so he erred in law. At no time in hisjudgment did he consider the weight of the evidence as it was hisduty to do. He failed to consider whether the facts before him consti-tuted reasonable notice because of his view of the meaning of “rea-sonable notice” as used in the Act. This was a question of law alone.The trial judge simply thought there were legal impediments to hisconsidering the facts before him.

24 I respectfully conclude, as in Morrison, that the trial judge did fail toconsider whether all the facts before her constituted reasonable notice. Iadopt the succinct statement, referred to in R. v. Zorlescu, 2015 ONSC3458 (Ont. S.C.J.) at para 26, that “reasonable notice is a concept, not adocument”.

25 In focusing on the issue of the lack of a signature, the trial judgefailed to weigh all of the evidence of notice in assessing whether therehad been reasonable notice and thereby erred in law. She did not con-sider that the prohibition order attached to the Notice of Intent containedall the correct information related to the identity of the accused, his priorconviction, its date, and the date and place of the prohibition order. Nordid she consider the additional fact of the certified copy of the signedprohibition order having been served on defence counsel two days priorto trial.


26 All of these facts were relevant to whether there had been reasonablenotice under section 28 of the Canada Evidence Act and whether, para-phrasing from Good at para 7, the Notice of Intent had been reasonablein time and substance, whether it had been misleading, confusing or oth-erwise prejudicial and whether it had clearly and precisely brought hometo the accused that the prohibition order might be used in relation to thecriminal charge he was facing of having breached it by driving whiledisqualified.

27 I agree with the Crown that by her ruling the trial judge was effec-tively requiring an exact copy of the prohibition order to be attached tothe Notice of Intent for there to be compliance with and reasonable no-tice under section 28 of the Canada Evidence Act. As stated in Good atpara 7, referring to no “insistence on perfection” and in Dixon at para 13,this is not correct.

Reasonable Notice28 It is evident from all of the facts referred to above, and it is certainly

established on more than the requisite balance of probabilities (Zorlescuat para 26) notwithstanding the lack of the accused’s signature on theprohibition order attached to the Notice of Intent, that there was no con-fusion over the prohibition order that would be entered by way of a certi-fied copy at trial. There is no evidence that the accused was misled, con-fused or prejudiced by the Notice of Intent. It clearly informed him thatthe prohibition order attached would be used at his trial. Both documentswere the same except for the presence of the accused’s signature on thecertified copy. It would be an unreasonable inference made without anyfactual basis that the omission of his signature on the copy attached tothe Notice of Intent could have confused or misled him as to the docu-ment to be used at trial.

29 I find, therefore, that had the trial judge correctly applied the standardof reasonable notice, she would have concluded that more likely than notthe accused or his counsel had been reasonably put on notice that a certi-fied copy of the prohibition order might be used at trial.

Conclusion30 Accordingly, the certified copy of the prohibition order was admissi-

ble at trial pursuant to section 28 of the Canada Evidence Act.31 Because the reasonable notice issue was dispositive of the trial, it fol-

lows that the verdict would not necessarily have been the same but for


the error in law. On the facts before the trial judge I agree with theCrown that a guilty verdict would have been the only verdict availablebut for the error in law.

32 It is for these reasons I allow the appeal and set aside the not guiltyverdict from the trial judge. I enter a verdict of guilty, remit the matter tothe trial court and direct the trial court to impose a sentence that is war-ranted in law.

Appeal allowed; accused convicted.


[Indexed as: R. v. Joe]

REGINA v. ARTHUR FRANKIE JOE

Yukon Territory Territorial Court

Docket: Whitehorse 13-00833, 14-00459

2016 YKTC 31

Luther Terr. Ct. J.

Judgment: July 22, 2016

Criminal law –––– Offences — Refusing to provide breath or blood sam-ple — Sentencing –––– Aboriginal accused was driving erratically — Despiteample instructions and warnings, accused refused to provide sample of hisbreath into approved screening device — At time accused was on undertakingthat required him to abstain from possession or consumption of alcohol — Ac-cused was also approached by police when he was intoxicated outside his truck,which was stalled at angle to curb — Accused pleaded guilty to refusing to com-ply with breathalyzer demand and breach of undertaking and was convicted ofdriving with excessive alcohol — Accused was sentenced to 22 months’ impris-onment for refusing to comply with breathalyzer demand, 5 days consecutive forbreach of undertaking and 21 months consecutive for driving with excessive al-cohol — Accused was given credit of 19.5 months for pre-sentence custody ondriving with excessive alcohol charge — Accused had horrendous record of 12previous convictions for drinking and driving offences plus 4 convictions fordriving while prohibited and 14 convictions for failing to comply with court or-ders — Principles of sentencing applicable to cases were denunciation, deter-rence and separation from society and rehabilitation took back seat — Therewould be more control over accused and better protection for public if accusedwere subject to lengthy driving prohibition order and maximum probation orderof three years — By allowing accused to serve territorial sentence he wouldhave community and family supports nearby — Degree of moral blameworthi-ness was extremely high — Accused was aware of his issues, well spoken anddespite being alcoholic, was able to remain sober for eight and one half years —Accused should have almost no consideration afforded to him as aboriginal of-fender, regardless of how lifelong miseries were forced on him by residentialschool and integration.

Criminal law –––– Offences — Driving/care and control with excessive alco-hol — Sentencing — Miscellaneous –––– Aboriginal accused was driving errat-ically — Despite ample instructions and warnings, accused refused to providesample of his breath into approved screening device — At time accused was onundertaking that required him to abstain from possession or consumption of al-

R. v. Joe 115

cohol — Accused was also approached by police when he was intoxicatedoutside his truck, which was stalled at angle to curb — Accused pleaded guiltyto refusing to comply with breathalyzer demand and breach of undertaking andwas convicted of driving with excessive alcohol — Accused was sentenced to22 months’ imprisonment for refusing to comply with breathalyzer demand, 5days consecutive for breach of undertaking and 21 months consecutive for driv-ing with excessive alcohol — Accused was given credit of 19.5 months for pre-sentence custody on driving with excessive alcohol charge — Accused had hor-rendous record of 12 previous convictions for drinking and driving offences plus4 convictions for driving while prohibited and 14 convictions for failing to com-ply with court orders — Principles of sentencing applicable to cases were de-nunciation, deterrence and separation from society and rehabilitation took backseat — There would be more control over accused and better protection for pub-lic if accused were subject to lengthy driving prohibition order and maximumprobation order of three years — By allowing accused to serve territorial sen-tence he would have community and family supports nearby — Degree of moralblameworthiness was extremely high — Accused was aware of his issues, wellspoken and despite being alcoholic, was able to remain sober for eight and onehalf years — Accused should have almost no consideration afforded to him asaboriginal offender, regardless of how lifelong miseries were forced on him byresidential school and integration.

Cases considered by Luther Terr. Ct. J.:

Miller v. State of Alaska (1996), 1996 WL 685760 (dummy) — consideredR. c. Beaudry (2007), 2007 SCC 5, 2007 CarswellQue 235, 2007 CarswellQue

236, 44 C.R. (6th) 57, [2007] S.C.J. No. 5, 216 C.C.C. (3d) 353, 43 M.V.R.(5th) 1, 276 D.L.R. (4th) 1, 356 N.R. 323, [2007] 1 S.C.R. 190, [2007]A.C.S. No. 5 (S.C.C.) — considered

R. c. Lacasse (2015), 2015 SCC 64, 2015 CSC 64, 2015 CarswellQue 11715,2015 CarswellQue 11716, [2015] S.C.J. No. 64, [2015] A.C.S. No. 64, 86M.V.R. (6th) 1, 24 C.R. (7th) 225, (sub nom. R. v. Lacasse) 478 N.R. 319,[2015] 3 S.C.R. 1089, 333 C.C.C. (3d) 450, 396 D.L.R. (4th) 214(S.C.C.) — considered

R. v. Bernshaw (1994), 8 M.V.R. (3d) 75, 53 B.C.A.C. 1, 87 W.A.C. 1, 26C.R.R. (2d) 132, 35 C.R. (4th) 201, 176 N.R. 81, [1995] 3 W.W.R. 457, 95C.C.C. (3d) 193, [1995] 1 S.C.R. 254, [1994] S.C.J. No. 87, EYB 1995-66965, 1994 CarswellBC 3038, 1994 CarswellBC 3039, [1994] A.C.S. No.87 (S.C.C.) — considered

R. v. Charlie (2015), 2015 YKCA 3, 2015 CarswellYukon 6, [2015] Y.J. No. 6,320 C.C.C. (3d) 479, 366 B.C.A.C. 254, 629 W.A.C. 254 (Y.T. C.A.) —referred to

R. v. Cheddesingh (2004), 2004 SCC 16, 2004 CarswellOnt 1132, 2004 Cars-wellOnt 1133, [2004] S.C.J. No. 15, 182 C.C.C. (3d) 37, 19 C.R. (6th) 35,


319 N.R. 94, 186 O.A.C. 184, [2004] 1 S.C.R. 433, REJB 2004-55510, 85O.R. (3d) 78 (note) (S.C.C.) — considered

R. v. Donnessey (1990), [1990] Y.J. No. 138, 1990 CarswellYukon 14 (Y.T.C.A.) — considered

R. v. Gladue (1999), [1999] S.C.J. No. 19, 1999 CarswellBC 778, 1999 Car-swellBC 779, 133 C.C.C. (3d) 385, 171 D.L.R. (4th) 385, [1999] 2 C.N.L.R.252, 23 C.R. (5th) 197, 238 N.R. 1, [1999] 1 S.C.R. 688, 121 B.C.A.C. 161,198 W.A.C. 161, [1999] A.C.S. No. 19 (S.C.C.) — followed

R. v. Hunt (2001), 207 Nfld. & P.E.I.R. 104, 620 A.P.R. 104, 2001 CarswellNfld351, [2001] N.J. No. 352 (Nfld. T.D.) — considered

R. v. Hutchings (2012), 2012 NLCA 2, 2012 CarswellNfld 17, [2012] N.J. No.12, 982 A.P.R. 211, 316 Nfld. & P.E.I.R. 211, 282 C.C.C. (3d) 104 (N.L.C.A.) — followed

R. v. Ipeelee (2012), 2012 SCC 13, 2012 CarswellOnt 4375, 2012 CarswellOnt4376, 91 C.R. (6th) 1, 280 C.C.C. (3d) 265, [2012] 2 C.N.L.R. 218, 428N.R. 1, 288 O.A.C. 224, [2012] S.C.J. No. 13, 318 B.C.A.C. 1, [2012] 1S.C.R. 433, 541 W.A.C. 1, 113 O.R. (3d) 320 (note) (S.C.C.) — followed

R. v. Johnson (1996), 112 C.C.C. (3d) 225, 84 B.C.A.C. 261, 137 W.A.C. 261,26 M.V.R. (3d) 15, 1996 CarswellBC 2634, [1996] B.C.J. No. 2508 (B.C.C.A.) — considered

R. v. Junkert (2010), 2010 ONCA 549, 2010 CarswellOnt 5845, 98 M.V.R. (5th)14, [2010] O.J. No. 3387, 259 C.C.C. (3d) 14, 267 O.A.C. 7, 103 O.R. (3d)284 (Ont. C.A.) — considered

R. v. Li (2009), 2009 BCCA 85, 2009 CarswellBC 449, 267 B.C.A.C. 77, 450W.A.C. 77, [2009] B.C.J. No. 340 (B.C. C.A.) — considered

R. v. M. (C.A.) (1996), 46 C.R. (4th) 269, 194 N.R. 321, 105 C.C.C. (3d) 327, 73B.C.A.C. 81, 120 W.A.C. 81, [1996] 1 S.C.R. 500, 1996 CarswellBC 1000,1996 CarswellBC 1000F, [1996] S.C.J. No. 28, EYB 1996-67066(S.C.C.) — followed

R. v. McVeigh (1985), 22 C.C.C. (3d) 145, 11 O.A.C. 345, 1985 CarswellOnt1389, [1985] O.J. No. 207 (Ont. C.A.) — considered

R. v. Muzzo (2016), 2016 ONSC 2068, 2016 CarswellOnt 4566, [2016] O.J. No.1506, 96 M.V.R. (6th) 310 (Ont. S.C.J.) — considered

R. v. O’Connell (2015), 2015 CarswellNfld 247, [2015] N.J. No. 235, 1150A.P.R. 274, 369 Nfld. & P.E.I.R. 274 (N.L. Prov. Ct.) — considered

R. v. Richardson (2006), [2006] EWCA Crim 3186 (Eng. C.A.) — consideredR. v. Schinkel (2015), 2015 YKCA 2, 2015 CarswellYukon 3, [2015] Y.J. No. 3,

73 M.V.R. (6th) 4, 320 C.C.C. (3d) 366, 365 B.C.A.C. 269, 627 W.A.C. 269(Y.T. C.A.) — considered

R. v. Schmidt (2012), 2012 YKSC 17, 2012 CarswellYukon 12, [2012] Y.J. No.18 (Y.T. S.C.) — distinguished

R. v. Vallee (2012), 2012 YKTC 92, 2012 CarswellYukon 109, [2012] Y.J. No.110 (Y.T. Terr. Ct.) — followed

R. v. Joe Luther Terr. Ct. J. 117

R. v. Vold (1990), 1990 CarswellBC 1414 (B.C. C.A.) — referred toR. v. Wise (1988), 9 M.V.R. (2d) 257, 1988 CarswellBC 495, [1988] B.C.J. No.

1990 (B.C. C.A.) — consideredR. v. Woloshyn (2006), 2006 BCCA 228, 2006 CarswellBC 1201, 32 M.V.R.

(5th) 1, (sub nom. R. v. W. (J.A.)) 209 C.C.C. (3d) 539, 225 B.C.A.C. 161,371 W.A.C. 161, [2006] B.C.J. No. 1112 (B.C. C.A.) — considered

Virginia v. Harris (2009), 558 U.S. 978 (U.S. Sup. Ct.) — referred to


Controlled Drugs and Substances Act, S.C. 1996, c. 19Generally — referred to

Criminal Code, R.S.C. 1985, c. C-46Generally — referred tos. 145(5.1) [en. 1997, c. 18, s. 3(2)] — considereds. 253(1)(b) — considereds. 254(5) — considereds. 259(1)(c) — referred tos. 718.1 [en. R.S.C. 1985, c. 27 (1st Supp.), s. 156] — considereds. 718.2(e) [en. 1995, c. 22, s. 6] — considered

SENTENCING of accused convicted of refusing to comply with breathalyzerdemand, breach of undertaking and driving with excessive alcohol.

Eric Marcoux, for CrownLynn MacDiarmid, for Defence

Luther Terr. Ct. J.:

1 On 22 April 2016, I sentenced Mr. Joe to 43 months and five daysimprisonment less a credit of 19.5 months for custody prior to sentence.Brief oral reasons were given at the time with a commitment to file writ-ten reasons. The following are the reasons for sentence.

2 This offender is before the Court being sentenced for refusing to com-ply with a breathalyzer demand along with a breach of undertaking from31 January 2014 and an over 80 charge from 10 October 2014.

3 On the s. 254(5) and s. 145(5.1) charges he pleaded guilty. He wasconvicted after a trial on the s. 253(1)(b) charge.

4 The key facts on the January 2014 refusal charge included considera-ble erratic driving just after midnight on the two busiest avenues inWhitehorse. There was property damage to the driver’s side mirror afterMr. Joe drove over a traffic island and struck a sign. A conscientiouscitizen, who phoned the police, spoke to the offender who initially


claimed his nephew was driving. The citizen noticed that Mr. Joe wasunsteady on his feet, had slurred speech, and the smell of alcohol on hisbreath. These observations were made known to the police who also no-ticed his bloodshot eyes.

5 Despite ample instructions and warnings, Mr. Joe refused to provide asample of his breath into the Alco-sensor FST (ASD). At the time, Mr.Joe was on an undertaking that required him to abstain from the posses-sion or consumption of alcohol. He was arrested and later released on apromise to appear. Mr. Joe entered guilty pleas to these charges on 28January, 2016.

6 The trial and judgment on the October 2014 s. 253(b) charge tookplace between July and September 2015.

7 Again, Mr. Joe’s truck was on 2nd and 4th Avenues around midnight.He claimed he was not driving, which remarkably he also told the con-scientious citizen on the other case. His truck stalled-out on 4th Avenueand in a stopped position was at an angle to the curb. The offender wasout of his truck to switch over the fuel tank “changing gas line” when thepolice approached him. Mr. Joe was intoxicated and very angry aboutbeing “arrested for nothing”. The issue of care and control was closelyexamined by the court. Mr. Joe was found to be the driver. Even if I werewrong in that assessment of the evidence he was nonetheless in care orcontrol of his own truck that night. Mr. Joe was taken to the detachmentand there he blew 150 and 140 at 12:51 a.m. and 1:11 a.m. respectively.

8 The Crown sought a global sentence of four to five years for the twodrinking and driving offences. The defence felt that two to three yearswould be sufficient. Both acknowledged the 19.5 months credit for timein custody prior to sentence.

9 This offender has a horrendous record of 12 previous convictions fordrinking and driving offences plus four convictions for driving whileprohibited and 14 convictions for failing to comply with court orders. Hiscriminal history also includes violent and property related offences. Thedriver’s abstract from the Territorial government reveals a lengthy his-tory of vehicle impoundments and suspensions, but no movingviolations.

10 Without any doubt whatsoever the principles of sentencing applicableto these cases are denunciation, deterrence and separation from society.Rehabilitation takes a back seat and is of little concern except insofar asit may piggy-back on specific deterrence.


11 Section 718.1 of the Criminal Code reads as follows: A sentence must be proportionate to the gravity of the offence andthe degree of responsibility of the offender.

12 Although R. v. M. (C.A.), [1996] 1 S.C.R. 500 (S.C.C.) was decidedbefore s. 718.1 was enacted, comments by Chief Justice Lamer at pp.557-558 reflect the same principle and are relevant in this situation:

Retribution in a criminal context, by contrast, represents an objective,reasoned and measured determination of an appropriate punishmentwhich properly reflects the moral culpability of the offender havingregard to the intentional risk-taking of the offender, the consequentialharm caused by the offender and the normative character of the of-fender’s conduct. Furthermore, unlike vengeance, retribution incor-porates the principle of restraint; retribution requires the impositionof a just and appropriate punishment, and nothing more.

13 Courts all over the civilized world have expressed great concernabout the consequences of drinking and driving. Judge Gorman in R. v.O’Connell (2015), 369 Nfld. & P.E.I.R. 274 (N.L. Prov. Ct.) quoted froman Australian case: “It ‘would be fatuous to suggest that any person inthe community in the present day did not understand the very great riskto life and limb posed by people driving whilst intoxicated’ (see Pasznykv. R., [2014] VSCA 87 (Australia Vic. Sup. Ct.) at paragraph 68.”

14 The Supreme Court of Canada in R. v. Bernshaw (1994), [1995] 1S.C.R. 254 (S.C.C.), R. c. Beaudry, 2007 SCC 5 (S.C.C.) and R. c. La-casse, 2015 SCC 64 (S.C.C.), has in no uncertain terms condemneddrinking and driving. In both Lacasse and Beaudry, the Supreme Courtreturned to the “sad situation” as outlined by Cory J. in Bernshaw atpara. 16.

Every year, drunk driving leaves a terrible trail of death, injury,heartbreak and destruction. From the point of view of numbers alone,it has a far greater impact on Canadian society than any other crime.In terms of the deaths and serious injuries resulting in hospitalization,drunk driving is clearly the crime which causes the most significantsocial loss to the country.

15 In October 2009, a majority of the United States Supreme Court de-cided not to review a decision of the Virginia Supreme Court on the issueof detailed public tips given to the police and how the driver’s fourthAmendment rights against unreasonable search and seizure were in-fringed: Virginia v. Harris, 558 U.S. 978 (U.S. Sup. Ct. 2009).


16 Chief Justice Roberts along with the late Justice Scalia would havereviewed the case. In the course of the reasons of the Chief Justice, hepaid special heed to the dangers of drinking and driving including 13,000deaths and State initiatives to encourage tips:

There is no question that drunk driving is a serious and potentiallydeadly crime, as our cases have repeatedly emphasized. No one canseriously dispute the magnitude of the drunken driving problem orthe States’ interest in eradicating it. Media reports of alcohol-relateddeath and mutilation on the Nation’s roads are legion.

17 I mention this observation from the United States Supreme Courtonly for the purpose of showing international concern for the drinkingand driving issue.

18 In a neighbouring jurisdiction, the Court of Appeals of Alaska alsowrote of the seriousness of these crimes in Miller v. State of Alaska, 1996WL 685760 (dummy), an unpublished opinion. Miller, like in R. v.Woloshyn, 2006 BCCA 228 (B.C. C.A.) (as discussed in paragraph 36),involved impaired driving causing death, in fact two deaths caused byMiller and one by Woloshyn. Unlike Woloshyn, Miller had no prior fel-ony record but several speeding offences and a previous impaired con-viction. The predicate offence involved the operation of a boat. Millerwas sentenced to serve 12 years with an additional “32 years of sus-pended time”.

19 The Alaska court spoke of the courts’ duty to expressly disapprove“the reckless acts of drinking drivers”.

If the criminal justice system is to reduce the alarming frequency ofdrunken driving manslaughters, clear and consistent notice must beserved that the conduct involved in such cases will not be toleratedby the law...both as an expression of community condemnation andas a deterrent to other potential offenders...

20 R. v. Richardson, [2006] EWCA Crim 3186 (Eng. C.A.) is a decisionfrom England. The Court dealt with four men and one woman and ad-dressed the aspects of sentencing for drinking and driving causing death.In the course of their reasons at paragraph 22, the Court discussed theobvious central concern, namely driving after consuming alcohol:

The consumption of alcohol is deliberate. Everyone knows, or shouldknow, that the consumption of even small quantities of alcohol un-dermines the ability of any driver to apply his full concentration tothe road. Where the consumption is high, it is effectively extin-guished. Alcohol makes a driver personally unfit to drive, and the carof which he is in con becomes as dangerous with him at the wheel as


if it were subject to a serious known, potentially fatal, mechanicaldefect. Looking at the matter broadly, there is never any acceptableexcuse for driving a vehicle when the ability to do so properly isimpaired by alcohol or drugs. That is the critical ingredient of thisoffence. ...

21 The cases from the Supreme Court of Canada, other courts through-out Canada, and the world generally are universal in their condemnationof drinking and driving. It is a totally needless and senseless offence,causing untold and immeasurable harm. While rehabilitation must neverbe completely lost sight of, the paramount considerations on sentencingare denunciation and deterrence.

22 There was some glimmer of hope expressed in 2007 by the SupremeCourt in Beaudry at para 42:

The situation in Canada has improved since Cory J. made this damn-ing observation, but only because both the authorities and society it-self have made extensive efforts to raise public awareness and crackdown on impaired driving.

23 In R. v. Schmidt, 2012 YKSC 17 (Y.T. S.C.), Veale J. analyzed somestatistics and observed the following with excerpts from paragraphs 25and 26:

[25] ... Despite the statistics fluctuating from year to year, one canconclude that the problem of alcohol — involvement or drinking anddriving in the Yukon is, at the very least persistent.

[26] ... Alcohol and drug impaired driving is a concern in the Yukon.

24 Just two months later in R. v. Vallee, 2012 YKTC 92 (Y.T. Terr. Ct.),I expressed agreement with the observation of Mr. Justice Veale.

25 In R. c. Lacasse, three-and-one-half years later, the Supreme Court ofCanada overturned a Quebec Court of Appeal decision and largely re-stored the sentencing decision of Judge Couture of the Court of Quebec.Judge Courture had considered the local situation as a factor in his deci-sion and emphasized that impaired driving was a [translation] “scourge”in the area. Indeed, in the Beauce region in which Mr. Lacasse commit-ted his offences, there were a “large number of offences related to drink-ing and driving.” Any inclination that the situation of impaired drivingcrimes was going down was certainly not alluded to by the SupremeCourt of Canada as it was in Beaudry.

26 In the present case, unlike Schmidt, no statistics were presented.Nonetheless, it is my observation, as a longstanding deputy judge in thisjurisdiction, that the problem is certainly not getting any better. For ex-


ample, while presiding in the Whitehorse docket court on 11 May 2016,there were 35 individuals on the list. Of all the federal statutes includingthe Controlled Drugs and Substances Act, 1996 c. 19 and the CriminalCode, and of all the Territorial statutes, clearly seven of the 35 were fac-ing at least one drinking and driving charge.

27 R. v. Donnessey, [1990] Y.J. No. 138 (Y.T. C.A.) is a decision of theYukon Court of Appeal which has offered substantial guidance over thelast 25 years or so. The respondent had six prior drinking and drivingoffences, was 60 years old, married, steadily employed and was in dan-ger of “losing his trapline”.

28 Mr. Donnessey was on an access road and his lights “were turned onand off as the vehicle passed the patrol car.” There were no other drivingirregularities. He blew 180 and 200.

29 The Yukon Court of Appeal quoted with strong approval the state-ment set forth in R. v. Wise, [1988] B.C.J. No. 1990 (B.C. C.A.), from R.v. McVeigh (1985), 22 C.C.C. (3d) 145 (Ont. C.A.).

30 In McVeigh, MacKinnon A.C.J.O. made it abundantly clear howcourts should deal with offences at the “lower end”:

...it is the conduct of the accused, not just the consequences, that isthe criminality punished. ... The public should not have to wait untilmembers of the public are killed before the courts’ repudiation of theconduct that led to the killing is made clear. It is trite to say thatevery drinking driver is a potential killer.

31 The Yukon Court of Appeal allowed the Crown appeal and increasedthe Donnessey sentence from three months imprisonment plus one-yeardriving prohibition to two years less a day imprisonment and a three-yeardriving prohibition.

32 The pendulum does not always swing to the left. Most courts haveresponded responsibly to the carnage so unnecessarily caused by im-paired drivers.

33 Since McVeigh in 1985, the Ontario Court of Appeal made the fol-lowing pronouncement in R. v. Junkert, 2010 ONCA 549 (Ont. C.A.) atpara. 46:

In recent years there has been an upward trend in the length ofsentences imposed for drinking and driving offences. The reasons forthis trend can be attributed to society’s abhorrence for the oftentragic consequences that result when individuals choose to drink anddrive, thereby putting the lives and safety of others at risk.


34 [35] In the nationally highly publicized case of Marco MichaelMuzzo, Madam Justice Fuerst in her decision, R. v. Muzzo, 2016 ONSC2068 (Ont. S.C.J.) at paragraph 69 had this to say:

The second proposition that emerges from the jurisprudence is thatsentences for impaired driving causing death have increased in recentyears. This reflects society’s abhorrence for the often tragic conse-quences of drinking and driving, as well as concern that even thoughthe dangers of impaired driving are increasingly evident, the problemof drinking and driving persists. ...

35 The Court in Woloshyn reminded us of what sets drinking and drivingapart from most other offences. Madam Justice Ryan referred to her deci-sion in R. v. Johnson (1996), 112 C.C.C. (3d) 225 (B.C. C.A.), where shestated at paragraph 30:

Drinking-driving causing death or bodily harm offences are senselesscrimes because they are so easily avoided and at the same time theyare so easily committed by ordinary citizens. They are unlike anyother crimes in the sense that nothing much can be offered to justifydriving drunk. Crimes of theft may be motivated by poverty, crimesof assault may be motivated by fear, but what excuse can be offeredfor driving drunk, except that alcohol allowed the offender to lose allsense of judgment? It is for this reason that the communities right-fully express their outrage when victims are killed or injured as aresult of such conduct. It is for this reason that both deterrence anddenunciation are legitimate objectives to pursue for this type ofoffence.

36 Further in Johnson, Madam Justice Huddart added the following rea-soning at paragraphs 59 and 60:

[59] In assessing moral blameworthiness, I would, however, placethe emphasis less on the horrific consequences that are a risk under-taken by every person who drinks and drives, and more on that whichmakes the drunk driver morally culpable.

[60] The moral blameworthiness of a drunk who drives is in notseeking treatment for his alcoholism, in getting behind the driver’swheel of a motor vehicle, and in not putting in place safeguards toprevent him from driving when drunk, just as would a person withother health problems that make driving an exceptionally dangerousactivity. It is that irresponsible behaviour society seeks to denounce.It is that irresponsible behaviour that encroaches on our society’scode of values as expressed in the Criminal Code.

37 The British Columbia Court of Appeal in Woloshyn made it abun-dantly clear that “there are cases where the rehabilitation of the offender


will take precedence as the appropriate objective in sentencing. This isnot one of those cases ... because the gravity of the offence and the moralblameworthiness of the offender are so great that the sentence must com-municate society’s condemnation of this conduct”. (paras. 18 - 19).

38 Similarly here, as to rehabilitation taking precedence, “this is not oneof those cases”.

39 In Woloshyn the sentence was increased by the Court of Appeal fromtwo years’ to four years’ imprisonment, and in Johnson from three years’to five years’ imprisonment. Both of these cases involved deaths, as didLacasse. However, it is important to always bear in mind the overall sen-tencing scheme and to impose meaningful sentences even when there isno death or bodily harm caused (Donnessey, McVeigh, R. v. Vold [1990CarswellBC 1414 (B.C. C.A.)], CanLII 1201).

40 It is not necessary for Parliament to have increased this particularmaximum punishment for the courts to impose generally highersentences recognizing the harm done to society by drinking drivers.Thus, offenders such as Mr. Joe with horrendous records will be ap-proaching sentences in the upper range. Their culpability and moralblameworthiness are extremely high.

41 This offender is not a hopeless alcoholic with nothing going for him.He is a well-spoken, highly talented artist and was able to stay sober foreight and one half years.

42 The Crown’s position is for a global sentence in the range of four tofive years less time served. Realistically, Mr. Joe and other notorious re-peat offenders should be looking at seven to eight years; however, thereare a number of mitigating factors and the totality principle to deal with.

43 The late guilty plea on the refusal charge is a minor consideration.More important are the age and health of Mr. Joe. While rehabilitation isfar less important, it is recognized that there would be far more controlover him and better protection for the public if he were subject to alengthy driving prohibition order and the maximum probation order ofthree years with strict and practical terms. Furthermore, by allowing himto serve a territorial sentence, he would have community and family sup-ports nearby and not be in an isolated way in B.C.

44 The imposition of a seven year sentence, for example, three years onthe refusal charge with four years consecutive on the breathalyzer chargewould probably be considered excessive and represent on my part a re-jection of the totality principle.


45 The highest court in Newfoundland and Labrador in R. v. Hutchings,2012 NLCA 2 (N.L. C.A.), set out an exhaustive set of guidelines for thetotality principle at paragraph 84:

84 The foregoing analysis, as well as the fact that the Ruby formula-tion which was referred to in M.(C.A.), pre-dated ss. 718.1 and718.2(c), requires a restatement of the applicable approach. I wouldstate the following as guidelines for the analytical approach to betaken henceforth:

1. When sentencing for multiple offences, the sentencing judgeshould commence by identifying a proper sentence for eachoffence, applying proper sentencing principles.

2. The judge should then consider whether any of the individualsentences should be made consecutive or concurrent on theground that they constitute a single criminal adventure, with-out consideration of the totality principle at this stage.

3. Whenever, following the determinations in steps 1 and 2, theimposition of two or more sentences, to be served consecu-tively, is indicated, the application of the totality principle ispotentially engaged. The sentencing judge must therefore turnhis or her mind to its application.

4. The approach is to take one last look at the combined sen-tence to determine whether it is unduly long or harsh, in thesense that it is disproportionate to the gravity of the offenceand the degree of responsibility of the offender.

5. In determining whether the combined sentence is unduly longor harsh and not proportionate to the gravity of the offenceand the degree of responsibility of the offender, the sentenc-ing court should, to the extent of their relevance in the partic-ular circumstances of the case, take into account, and balance,the following factors:

(a) the length of the combined sentence in relation to thenormal level of sentence for the most serious of theindividual offences involved;

(b) the number and gravity of the offences involved;

(c) the offender’s criminal record;

(d) the impact of the combined sentence on the offender’sprospects for rehabilitation, in the sense that it may beharsh or crushing;

(e) such other factors as may be appropriate to consider toensure that the combined sentence is proportionate to


the gravity of the offences and the offender’s degreeof responsibility.

6. Where the sentencing judge concludes, in light of the applica-tion of those factors identified in Step 5 that are deemed to berelevant, that the combined sentence is unduly long or harshand not proportionate to the gravity of the offences and theoffender’s degree of responsibility, the judge should proceedto determine the extent to which the combined sentenceshould be reduced to achieve a proper totality. If, on the otherhand, the judge concludes that the combined sentence is notunduly long or harsh, the sentence must stand.

7. Where the sentencing court determines that it is appropriateto reduce the combined sentence to achieve a proper totality,it should first attempt to adjust one or more of the sentencesby making it or them concurrent with other sentences, but ifthat does not achieve the proper result, the court may in addi-tion, or instead, reduce the length of an individual sentencebelow what it would otherwise have been.

8. In imposing individual sentences adjusted for totality, thejudge should be careful to identify:

(a) the sentences that are regarded as appropriate for eachindividual offence applying proper sentencing princi-ples, without considerations of totality;

(b) the degree to which sentences have been made con-current on the basis that they constitute a single crimi-nal adventure; and

(c) the methodology employed to achieve the proper to-tality that is indicated, identifying which individualsentences are, for this purpose, to be made concurrentor to be otherwise reduced.

9. Finally, the sentencing judge should indicate whether one ormore of the resulting sentences should be further reduced toreflect any credit for pre-trial custody and if so, by howmuch.

46 That decision acknowledged the preference of the general approachtaken in R. v. Li, 2009 BCCA 85 (B.C. C.A.). Mr. Li was sentenced to 13years imprisonment on five serious drug charges. The sentence was up-held on appeal. In the course of their reasons the B.C. Court of Appealwrote at paragraphs 28 and 52:

28 Thus, there is a two-stage approach to sentencing an offender con-victed of multiple offences. The first stage is to determine the appro-


priate sentence for each offence, and decide whether the individualsentences should be made consecutive or concurrent. If consecutivesentences are imposed, then the second stage is to determine whetherthe sentences, in the aggregate, offend the totality principle. If thesentence, as a whole, is unduly harsh or disproportionate, then thelength of the individual sentences should be adjusted in order to ar-rive at an appropriate global sentence. See R. v. P.P.H., 2003 BCCA591.

. . .

52 Thus, it is the principle of proportionality, as applied through thetotality principle, which governs the imposition of a “just and appro-priate” sentence. That requires an overall consideration of the gravityof the offence and the culpability of the offender.

47 With regard to the two drinking and driving offences before me, themaximum sentence is five years on each. While various maximumsentences for such offences have been increased by Parliament over theyears since Donnessey in 1990, the five-year maximum by indictmentremains the same.

48 The Court is well aware of R. v. Cheddesingh, 2004 SCC 16 (S.C.C.).We are not attempting to place labels such as “worst offender” or “worstoffence”. Rather, what is truly important is the harm caused by impaireddrivers and the moral blameworthiness of this offender. His moralblameworthiness is compounded by his efforts to avoid blame by falselyclaiming that someone else was driving on both occasions.

49 Remaining to be judicially considered is s. 718(2)(e) of the CriminalCode which reads as follows:

718.2 A court that imposes a sentence shall also take into considera-tion the following principles:

. . .

(e) all available sanctions, other than imprisonment, thatare reasonable in the circumstances and consistent withthe harm done to victims or to the community should beconsidered for all offenders, with particular attention tothe circumstances of Aboriginal offenders.

50 We have had the benefit of a thorough, detailed and reliable R. v.Gladue, [1999] 1 S.C.R. 688 (S.C.C.) Report prepared by Mark Stevenswhich clearly helps us understand something of the life and family back-ground of Arthur Joe.


51 The fact that Mr. Joe was horribly abused as a child in residentialschools does not relieve him from responsibility for these offences. Nor,in my view, does it “reduce his moral culpability, in keeping with thejurisprudence” (see para. 33 of R. v. Charlie, 2015 YKCA 3 (Y.T.C.A.)).

52 The degree of moral blameworthiness is extremely high. UnlikeFranklin Charlie, this offender does not suffer from Fetal Alcohol Syn-drome. Indeed, as pointed out above, Mr. Joe is very aware of his issues,is well spoken, and despite being an alcoholic, was able to remain soberfor eight and one half years according to his Gladue Report. This is re-flected in his criminal record showing a gap between 2005 and 2014,only a part of which was time being served in a federal penitentiary.

53 In R. v. Schinkel, 2015 YKCA 2 (Y.T. C.A.), at paras. 25, 26 and 27,the Court wrote of Gladue considerations and proportionality.

54 The background of this particular offender is rife with Gladue factorsas were the backgrounds of Mr. Ipeelee and Mr. Ladue (paras. 2, 3, 19-21 of R. v. Ipeelee, 2012 SCC 13 (S.C.C.)).

55 Born in the winter of 1952, Arthur Joe hails from a noble line of theChampagne and Aishihik First Nations. His great-grandfather, ChiefIsaac, had profitable dealings with the gold rush stampeders almost 120years ago. Grandparents, Albert Isaac and Elsie Johnson, largely raisedArthur Joe, whose biological father was “likely a member of the Cana-dian Air Force” and had no involvement. His mother, Jenny Joe Isaac,and stepfather drank, and “Jenny froze to death when Arthur was nineyears old”. Thus, he was largely raised in a good, traditional home by hisgrandparents, and spent solid quality time with them also on the landabsorbing an “idyllic” life and learning his First Nation’s language.

56 His life was shattered at age five when he was removed and sent tothe Lower Post residential school in northern B.C. “one of the more re-pressive and brutal residential schools in Canada” where he was forcedto stay for 10 years. This deeply affected him ever since. His brother anda sister were compelled to attend there too. The latter committed suicidewhile the former “drank herself to death”.

57 The sexual and physical abuse unmercifully and criminally forced onhim built up a lot of hatred in this youth towards the Roman CatholicChurch and the RCMP. As Mr. Joe explained:

It’s just people in uniforms that trigger me off. Everything happenedto me ... any and all the abuse there is. I suffered the mental, thephysical, the spiritual, the emotional, [and] the sexual.


58 Even a move to Coudert Hall in Whitehorse for a couple of years didnot improve his victimized lot. His drinking started possibly as early asfive years of age and by his late teens he was an alcoholic, unable to holddown regular employment.

59 His relationships suffered. Another heavy tragedy was visited on himwhen his second partner, who had longstanding alcohol abuse issues,died in police cells of bronchial pneumonia. She had, at least one timebefore, during her many stays in the cells, shown that she was “prone toseizures.” Thus, to this day, Mr. Joe feels strongly that the RCMP wasresponsible for her death.

60 Towards the end of the Gladue report under the heading Next Steps,Mr. Stevens presented a succinct summary:

Arthur readily admits that he has to overcome a number of barriers tosuccess, not the least of which is his addiction to alcohol. He is alsostill clearly struggling with the trauma of residential school and otherevents in his life, including the untimely death of his mother, two ofhis siblings, and the death of his partner in police custody. He carrieswith him a huge amount of resentment towards representatives of thejustice system, which he believes is a self-propagating instrument ofcolonialism designed to oppress First Nations’ people in ways thatwill not promote their rehabilitation. He has not fully accepted re-sponsibility for the offences he is dealing today because he feels thathe has been “railroaded” by a system that is inherently racist. Givenhis life circumstances, Arthur’s anger and resentment are entirelyunderstandable.

61 The Supreme Court of Canada has reminded trial judges of their du-ties in paragraphs 86 and 87 from Ipeelee:

86 In addition to being contrary to this Court’s direction in Gladue, asentencing judge’s failure to apply s. 718.2(e) in the context of seri-ous offences raises several questions. First, what offences are to beconsidered “serious” for this purpose? As Ms. Pelletier points out:“Statutorily speaking, there is no such thing as a ‘serious’ offence.The Code does not make a distinction between serious and non-seri-ous crimes. There is also no legal test for determining what should beconsidered ‘serious’” (R. Pelletier, “The Nullification of Section718.2(e): Aggravating Aboriginal Over-representation in CanadianPrisons” (2001), 39 Osgoode Hall L.J. 469, at p. 479). Trying tocarve out an exception from Gladue for serious offences would inevi-tably lead to inconsistency in the jurisprudence due to “the relativeease with which a sentencing judge could deem any number of of-fences to be ‘serious’” (Pelletier, at p. 479). It would also deprive s.


718.2(e) of much of its remedial power, given its focus on reducingoverreliance on incarceration. A second question arises: Who arecourts sentencing if not the offender standing in front of them? If theoffender is Aboriginal, then courts must consider all of the circum-stances of that offender, including the unique circumstances de-scribed in Gladue. There is no sense comparing the sentence that aparticular Aboriginal offender would receive to the [page486] sen-tence that some hypothetical non-Aboriginal offender would receive,because there is only one offender standing before the court.

87 The sentencing judge has a statutory duty, imposed by s. 718.2(e)of the Criminal Code, to consider the unique circumstances of Ab-original offenders. Failure to apply Gladue in any case involving anAboriginal offender runs afoul of this statutory obligation. As thesereasons have explained, such a failure would also result in a sentencethat was not fit and was not consistent with the fundamental principleof proportionality. Therefore, application of the Gladue principles isrequired in every case involving an Aboriginal offender, includingbreach of an LTSO, and a failure to do so constitutes an error justify-ing appellate intervention.

62 I am not suggesting that drinking and driving offences be categorizedas “serious”, as opposed to various crimes of violence. Who is being sen-tenced here is Mr. Joe for the crimes he committed. In this rare case of anotoriously repeat drinking driver, it is my view that he should have al-most no particular consideration afforded to him as an aboriginal of-fender, regardless of how lifelong miseries were forced on him by resi-dential schools and integration. While not totally ignoring Gladue, Iwould rate it as infinitesimal in and of itself. It was but one of otherfactors which kept him away from a federal penitentiary.

63 For a person with now 14 drinking and driving offences, there is re-ally no other option than a lengthy period of imprisonment. Given theuniversally accepted grave and serious concerns about impaired driving,it cannot be said that with such repeat offenders there is an “overrelianceon incarceration”. Indeed there is no evidence before me that aboriginaloffenders are over-represented in jail on account of drinking and drivingoffences.

64 It is only because of his sincere desire to help others, age, health andability to support himself through his considerable artistic talent that I amnot sentencing him to a global sentence of seven years. The Crown hadsought a sentence of four to five years in a federal penitentiary while thedefence pressed for two to three years. Both acknowledged the 19.5months of credit for time spent in custody prior to sentence.


65 Mr. Joe’s only family, community and current professional support ishere in this territory.

66 I use the phraseology of Rothstein J., dissenting in part in Ipeelee atparagraph 154. I do not absolve Mr. Joe for his own conduct. Also in thedissent at paragraph 131:

...However, as in all cases, this must be done with protection of thepublic as the paramount concern; Aboriginal communities are not aseparate category entitled to less protection because the offender isAboriginal. ...

67 Indeed what must be remembered in this case, is that we are dealingwith drinking and driving offences on two of the busiest thoroughfaresnorth of 60. The public to be protected includes First Nations people,other Canadians and tourists from all over the world.

68 Given his age and unconscionable record, I believe the ends of justiceare best served by curtailing the freedoms of Mr. Joe for as long as rea-sonably and fairly possible in terms of imprisonment, strict probation anda prohibition order which will effectively prevent him from lawfullydriving for the rest of his life.

69 As to s. 259 the maximum duration would be life. It is not unheard ofto impose prohibition orders of 10 years or more. In R. v. Hunt (2001),207 Nfld. & P.E.I.R. 104 (Nfld. T.D.), LeBlanc J. of the Supreme CourtTrial Division imposed a 15-year driving prohibition on a 47-year-oldman with a far lesser criminal record than Mr. Joe and on a similarbreathalyzer offence.

70 Mr. Arthur Frankie Joe is hereby sentenced to 22 months’ imprison-ment on the s. 254(5) offence from January 2014, five days consecutiveon the s. 145(5.1) offence and 21 months consecutive on the s. 253(1)(b)offence from October 2014. On the latter charge, he is given credit of19.5 months for pre-sentence custody. There are concurrent 10-year driv-ing prohibitions on the s. 254(5) and s. 253(1)(b) offences. The 10 yearsis “plus any period to which the offender is sentenced to imprisonment”pursuant to s. 259(1)(c) and further to the directions of the SupremeCourt of Canada in Lacasse. Driving on a highway is a privilege, not aright. This is a privilege which is essentially taken away from this of-fender on account of this order, his age, and the unlikelihood that hewould ever be insurable.

71 The victim surcharges are set at $200 where we are dealing with pro-cedure by indictment. Mr. Joe will have the means to pay if given suffi-cient time. I am not making these surcharges payable forthwith. The


funds go towards worthwhile programmes in this territory. Accordingly,this offender will be given three years to pay $600.

72 By imposing a very high territorial sentence, the Court is able to bet-ter control the behaviour of Mr. Joe for a longer time. If the Court hadaccepted the Crown’s position even at the high end, five years with thetime served, the offender would have gone to a federal penitentiary forabout 40 months and thus not be subject to a probation order at all. Withthis sentence there is a realistic control and supervision of Mr. Joe forabout 59 months, not taking into account in either scenario early releasefrom the penitentiary or the prison.

73 The probation order of three years is comprehensive but not oppres-sive. Serious consideration was given to the conditions based on theGladue Report, his record and his abilities. The order has been carefullycrafted to discourage Mr. Joe from committing further offences andthereby protect the public. It also gives him an opportunity to help peopleout, as he so adamantly stated he wants to do.

74 The following are the probation conditions:

1. Keep the peace and be of good behaviour;

2. Appear before the court when required to do so by the court;

3. Notify the Probation Officer, in advance, of any change of nameor address, and, promptly, of any change in employment oroccupation;

4. Remain within the Yukon unless you obtain written permissionfrom your Probation Officer or the court;

5. Report to a Probation Officer immediately upon your release fromcustody and thereafter, when and in the manner directed by theprobation Officer;

6. Reside as approved by your Probation Officer;

7. Not possess or consume alcohol and/or controlled drugs or sub-stances that have not been prescribed for you by a medical doctor.Provide a sample of your breath for the purpose of analysis upondemand by a peace officer who has reason to believe that you mayhave failed to comply with this condition;

8. Not attend any premises whose primary purpose is the sale of al-cohol including any liquor store, off sales, bar, pub, tavern, loungeor nightclub;


9. Attend and actively participate in all assessment and counsellingprograms as directed by your Probation Officer, and completethem to the satisfaction of your Probation Officer, for the follow-ing issues: alcohol abuse, and anger management, and provideconsents to release information to your Probation Officer regard-ing your participation in any program you have been directed todo pursuant to this condition;

10. Perform eighty (80) hours of community service as directed byyour Probation Officer or such other person as your Probation Of-ficer may designate. This community service is to be completedno later than one (1) year before the end of this order. Any hoursspent in programming may be applied to your community serviceat the discretion of your Probation Officer; and

11. Not to be present in any motor vehicle when an occupant has anyalcohol in his or her body.

Order accordingly.


[Indexed as: R. v. Aleksev]

Her Majesty the Queen and Aleksey Aleksev


Docket: 95/15

2016 ONSC 1834

Trotter J.

Heard: March 7, 9-11, 2016

Judgment: April 14, 2016

Criminal law –––– Offences — Dangerous driving causing death — Miscel-laneous –––– Deceased was riding bicycle when he was struck by car and waskilled — Accused charged with dangerous driving causing death, criminal negli-gence causing death, and manslaughter — Accused convicted — Defendant ad-mitted causation — Deceased had right of way in intersection — Accused wasdriving well above speed limit, in range of 90 km/h — Driving was erratic andaccused took his attention from road — Combination of speed and distractioncreated real hazard that any reasonable person would have realized — Deceaseddid not notice that light had changed and truck had entered intersection, leadingto collision — Behaviour of accused was marked departure from reasonablestandard — Accused showed wanton and reckless disregard for safety and livesof others, which led to death of deceased — Reasonable person in accused’s cir-cumstances would foresee risk of bodily harm.

Criminal law –––– Offences — Criminal negligence in operation of motorvehicle causing death — Elements — General principles –––– Deceased wasriding bicycle when he was struck by car and was killed — Accused chargedwith dangerous driving causing death, criminal negligence causing death, andmanslaughter — Accused convicted — Defendant admitted causation — De-ceased had right of way in intersection — Accused was driving well abovespeed limit, in range of 90 km/h — Driving was erratic and accused took hisattention from road — Combination of speed and distraction created real hazardthat any reasonable person would have realized — Deceased did not notice thatlight had changed and truck had entered intersection, leading to collision — Be-haviour of accused was marked departure from reasonable standard — Accusedshowed wanton and reckless disregard for safety and lives of others, which ledto death of deceased — Reasonable person in accused’s circumstances wouldforesee risk of bodily harm — Parties to make submissions regarding Kienappleprinciple.

R. v. Aleksev 135

Criminal law –––– Offences — Manslaughter — General principles –––– De-ceased was riding bicycle when he was struck by car and was killed — Accusedcharged with dangerous driving causing death, criminal negligence causingdeath, and manslaughter — Accused convicted — Defendant admitted causa-tion — Deceased had right of way in intersection — Accused was driving wellabove speed limit, in range of 90 km/h — Driving was erratic and accused tookhis attention from road — Combination of speed and distraction created realhazard that any reasonable person would have realized — Deceased did not no-tice that light had changed and truck had entered intersection, leading to colli-sion — Behaviour of accused was marked departure from reasonable stan-dard — Reasonable person in accused’s circumstances would foresee risk ofbodily harm.

Cases considered by Trotter J.:

R. v. Anderson (1990), [1990] 2 W.W.R. 481, [1990] 1 S.C.R. 265, 105 N.R.143, 64 Man. R. (2d) 161, 53 C.C.C. (3d) 481, 75 C.R. (3d) 50, 19 M.V.R.(2d) 161, 1990 CarswellMan 190, 1990 CarswellMan 375, EYB 1990-67179, [1990] S.C.J. No. 14 (S.C.C.) — distinguished

R. v. Beatty (2008), 2008 SCC 5, 2008 CarswellBC 307, 2008 CarswellBC 308,57 M.V.R. (5th) 1, [2008] A.C.S. No. 5, [2008] S.C.J. No. 5, 54 C.R. (6th) 1,228 C.C.C. (3d) 225, 76 B.C.L.R. (4th) 201, [2008] 5 W.W.R. 1, 289 D.L.R.(4th) 577, 371 N.R. 119, [2008] 1 S.C.R. 49, 251 B.C.A.C. 7, 420 W.A.C. 7,179 C.R.R. (2d) 247 (S.C.C.) — considered

R. v. Creighton (1993), 23 C.R. (4th) 189, 157 N.R. 1, 65 O.A.C. 321, 105D.L.R. (4th) 632, 83 C.C.C. (3d) 346, [1993] 3 S.C.R. 3, 17 C.R.R. (2d) 1,1993 CarswellOnt 115, 1993 CarswellOnt 989, [1993] S.C.J. No. 91, EYB1993-67521, [1993] 3 S.C.R. 346 (S.C.C.) — referred to

R. v. DeSousa (1992), 15 C.R. (4th) 66, 9 O.R. (3d) 544 (note), 142 N.R. 1, 76C.C.C. (3d) 124, 95 D.L.R. (4th) 595, 56 O.A.C. 109, [1992] 2 S.C.R. 944,11 C.R.R. (2d) 193, 1992 CarswellOnt 100, 1992 CarswellOnt 1006F,[1992] S.C.J. No. 77, EYB 1992-67573, [1992] A.C.S. No. 77 (S.C.C.) —referred to

R. v. F. (J.) (2008), 2008 SCC 60, 2008 CarswellOnt 6339, 2008 CarswellOnt6340, 60 C.R. (6th) 205, 236 C.C.C. (3d) 421, 380 N.R. 325, 299 D.L.R.(4th) 42, 242 O.A.C. 338, [2008] S.C.J. No. 62, [2008] 3 S.C.R. 215(S.C.C.) — referred to

R. v. Graat (1982), [1982] 2 S.C.R. 819, 18 M.V.R. 287, 31 C.R. (3d) 289, 2C.C.C. (3d) 365, 144 D.L.R. (3d) 267, 45 N.R. 451, 1982 CarswellOnt 101,1982 CarswellOnt 745, [1982] S.C.J. No. 102 (S.C.C.) — referred to

R. v. Kienapple (1974), [1975] 1 S.C.R. 729, 26 C.R.N.S. 1, 15 C.C.C. (2d) 524,44 D.L.R. (3d) 351, 1 N.R. 322, 1974 CarswellOnt 8, 1974 CarswellOnt238F, [1974] S.C.J. No. 76 (S.C.C.) — referred to

R. v. L. (J.) (2006), 2006 CarswellOnt 155, 27 M.V.R. (5th) 1, 204 C.C.C. (3d)324, 206 O.A.C. 205, [2006] O.J. No. 131 (Ont. C.A.) — referred to


R. v. Layugan (2016), 2016 ONSC 2077, 2016 CarswellOnt 5128, [2016] O.J.No. 1725 (Ont. S.C.J.) — referred to

R. v. Loyer (1978), [1978] 2 S.C.R. 631, 3 C.R. (3d) 105, 40 C.C.C. (2d) 291, 85D.L.R. (3d) 101, 21 N.R. 181, 1978 CarswellQue 7, 1978 CarswellQue 119,[1978] S.C.J. No. 23 (S.C.C.) — referred to

R. v. M. (M.K.) (1998), 1998 CarswellOnt 1542, 35 M.V.R. (3d) 319, [1998]O.J. No. 1606 (Ont. C.A.) — referred to

R. v. Maybin (2012), 2012 SCC 24, 2012 CarswellBC 1412, 2012 CarswellBC1413, [2012] S.J. No. 24, 92 C.R. (6th) 221, 430 N.R. 33, 283 C.C.C. (3d)275, 348 D.L.R. (4th) 398, 321 B.C.A.C. 83, 547 W.A.C. 83, [2012] S.C.J.No. 24, [2012] 2 S.C.R. 30 (S.C.C.) — referred to

R. v. Morrisey (2000), 2000 SCC 39, 2000 CarswellNS 255, 2000 CarswellNS256, [2000] S.C.J. No. 39, 36 C.R. (5th) 85, 148 C.C.C. (3d) 1, 191 D.L.R.(4th) 86, 259 N.R. 95, 77 C.R.R. (2d) 259, [2000] 2 S.C.R. 90, 187 N.S.R.(2d) 1, 585 A.P.R. 1, REJB 2000-20235 (S.C.C.) — referred to

R. v. Nette (2001), 2001 SCC 78, 2001 CarswellBC 2481, 2001 CarswellBC2482, 158 C.C.C. (3d) 486, 46 C.R. (5th) 197, 205 D.L.R. (4th) 613, 96B.C.L.R. (3d) 57, [2002] 2 W.W.R. 1, 16 M.V.R. (4th) 159, 158 B.C.A.C.98, 258 W.A.C. 98, 277 N.R. 301, [2001] S.C.J. No. 75, [2001] 3 S.C.R. 488(S.C.C.) — referred to

R. v. Prince (1986), [1987] 1 W.W.R. 1, [1986] 2 S.C.R. 480, 33 D.L.R. (4th)724, 70 N.R. 119, 45 Man. R. (2d) 93, 30 C.C.C. (3d) 35, 54 C.R. (3d) 97,1986 CarswellMan 357, 1986 CarswellMan 405, [1986] S.C.J. No. 63, EYB1986-67204 (S.C.C.) — considered

R. v. Richards (2003), 2003 CarswellOnt 948, 169 O.A.C. 339, 35 M.V.R. (4th)25, 174 C.C.C. (3d) 154, [2003] O.J. No. 1042 (Ont. C.A.) — referred to


R. v. Sarrazin (2011), 2011 SCC 54, 2011 CarswellOnt 11569, 2011 Carswell-Ont 11570, [2011] S.C.J. No. 54, 88 C.R. (6th) 88, 422 N.R. 214, 276C.C.C. (3d) 210, 284 O.A.C. 170, [2011] 3 S.C.R. 505, 342 D.L.R. (4th) 361(S.C.C.) — considered

R. v. Williams (1981), 10 Man. R. (2d) 112, 63 C.C.C. (2d) 141, 1981 Car-swellMan 149 (Man. C.A.) — followed

R. v. Willock (2006), 2006 CarswellOnt 3733, 210 C.C.C. (3d) 60, 212 O.A.C.82, 35 M.V.R. (5th) 163, 40 C.R. (6th) 151, [2006] O.J. No. 2451 (Ont.C.A.) — distinguished

R. v. Worrall (2004), 2004 CarswellOnt 669, 19 C.R. (6th) 213, 189 C.C.C. (3d)79, [2004] O.J. No. 3463 (Ont. S.C.J.) — considered

R. v. Aleksev Trotter J. 137


Criminal Code, R.S.C. 1985, c. C-46s. 219 — referred tos. 219(1) — considereds. 220 — referred tos. 222(5)(a) — considereds. 222(5)(b) — referred tos. 234 — referred tos. 249 — considereds. 249(1) — referred tos. 249(1)(a) — considereds. 249(4) — referred tos. 255(3) — considereds. 255(3.1) [en. 2008, c. 6, s. 21(3)] — considered

TRIAL of accused on charges of manslaughter, criminal negligence causingdeath and dangerous driving causing death.

John Rinaldi, for CrownMichael Simrod, for Mr. Aleksev

Trotter J.:

Introduction1 Adrian Dudzicki, 23, was riding his bike near a busy Toronto inter-

section. After the light turned green, he pedaled along the pedestriancrosswalk. Aleksey Aleksev, 20, drove his car through the intersectionagainst the red light, hitting Mr. Dudzicki and killing him instantly.

2 Mr. Aleksev is charged with manslaughter (Criminal Code, s. 234),criminal negligence causing death (s. 220) and dangerous driving causingdeath (s. 249(4)). On Mr. Aleksev’s behalf, it is conceded that he causedMr. Dudzicki’s death. The main issue in this case is whether Mr. Alek-sev’s driving was merely careless, or whether it reached the standard ofcriminality.

The Facts: Summary and Key Findings

(a) The Setting and Road Conditions3 The collision occurred as Mr. Aleksev drove his car (a 1992 black

BMW) in a West/North direction along Sheppard Avenue (“Sheppard”).He crossed over Allen Road (“Allen”) and continued westbound. Shep-pard then curves in a northerly direction. Approximately 500 meters


from Allen is the intersection of Sheppard and Kodiak Crescent (“Ko-diak”). On Sheppard, there are two lanes that go directly through the in-tersection, in addition to separate left and right turn lanes. This is thesame in both directions.

4 On the morning of this terrible collision, it was a clear, sunny day.Mr. Aleksev was not driving into the sun; it was behind him. The roadwas in good condition. Later in these Reasons, I will discuss the Colli-sion Reconstruction Report prepared by Det. Sean Davey. For presentpurposes, he found the drag factor on Sheppard at Kodiak to be withinnormal parameters.

5 The collision occurred on a weekday at 9:30 a.m. The area was busywith vehicular and pedestrian traffic. This is confirmed by surveillancefootage from a nearby gas station. The area is very built-up with condo-miniums and a military facility (Dennison Armoury). Mr. Aleksevworked nearby, at his father’s business. He had travelled this road manytimes.

(b) The Speed of the BMW: Eyewitness Accounts6 Four people saw Mr. Aleksev’s driving just before the collision.

Eghtedar Manouchehri, 38, was a Major with the Canadian ArmedForces. That morning, he was on his way to the Dennison Armoury. AsMr. Manouchehri walked westbound along Sheppard, as he had done somany times, the BMW passed him, also travelling westbound. He saidthat the engine made a loud noise. The car was in the curb lane going“significantly faster than anyone else.” Mr. Manouchehri said that the carwas going too fast for the curve and almost sideswiped a school bus inthe passing lane. The driver took “corrective action” to avoid a collisionand then “zig-zagged” as it went around the curve.

7 Mr. Manouchehri estimated that the BMW was going at 90 to 110km/h in a 50 to 60 km/h zone. He only saw the BMW for a brief periodof time as it drove past. He could not tell if it was accelerating. TheBMW left his field of view due to the curve in the road. As he ap-proached Sheppard and Kodiak, Mr. Manouchehri could tell that therehad been an accident. He rushed to the scene to offer assistance.

8 In cross-examination, Mr. Manouchehri said his speed estimate wasbased on sight and his personal opinion. Moreover, he was unsure of thelength of the school bus. He agreed that the BMW did not leave its laneto the left, nor did it strike the curb to the right. The bus did not leave its


lane and it did not appear that the driver of the bus had to take evasiveaction.

9 Maor Matzliach and Roland Greber saw the BMW hit Mr. Dudzicki. Ideal them together because they are co-workers. They were travelling inseparate cars, en route to the same destination. The two men were in thefront row of cars stopped at the intersection. They were facing Mr. Alek-sev as he drove towards them.

10 Mr. Matzliach testified that he was in the left through lane. To hisright was the car driven by Mr. Greber. Mr. Matzliach testified that hewas listening to loud music with his windows up. He communicated withMr. Greber by hand gestures. Mr. Matzliach saw the BMW comethrough the intersection and hit Mr. Dudzicki. He turned just in time tosee the impact. He said that the car was going 90 to 110 km/h, noting,“Nobody runs a red light going that speed.” He said he was stopped for 6to 7 seconds before the collision.

11 Mr. Matzliach agreed that he only saw the BMW for a moment, as itcrossed through the intersection. He insisted that his speed estimate wasbased on his driving experience. Confronted with the evidence of theDet. Davey (discussed below) that, just after the impact, the BMW wastravelling at 67 km/h, Mr. Matzliach said, “That’s impossible, in myopinion.”

12 Mr. Matzliach testified that he saw a dump truck drive through anamber/red light 5 to 10 seconds before the collision. This was not borneout by video surveillance evidence. Mr. Matzliach did not mention this inhis statement to the police or in his preliminary inquiry testimony. Heexplained that he was not specifically asked about a dump truck. On theother hand, he did not see a garbage truck enter the intersection close intime to the collision. Video evidence shows a truck of this description inthe intersection when the collision occurred.

13 Mr. Greber testified that he was stopped at the intersection to the rightof Mr. Matzliach. They both had their windows down and he was provid-ing directions to Mr. Matzliach. He saw Mr. Dudzicki on his bike, in thecrosswalk, moving towards him. He saw the black BMW “out of the cor-ner of my eye, coming quickly.” He saw the collision with Mr. Dudzicki.Mr. Greber said that the BMW could have “easily” been going 90 km/hor more. Interestingly, Mr. Greber saw that the countdown timer forpedestrians had counted down 23 of 30 seconds. He had driven thisstretch of road “thousands” of times because he worked in the area fornearly 9 years.


14 In cross-examination, Mr. Greber acknowledged that he first saw theBMW when it was a few feet away from the intersection. He said he sawit 3 to 4 seconds before the impact, travelling 100 metres before the colli-sion, but then admitted, “I am guessing as to the distance.” Mr. Greberagreed that he was “guessing” about the speed, but then said that it wasbased on experience. Lastly, Mr. Greber did not see the dump truck thatMr. Matzliach thought he saw, nor the green truck that was actually inthe intersection when the collision occurred.

15 Master Corporal Miller of the Canadian Armed Forces also saw thecollision. He was going to work and was stopped in the right turn lane atthe intersection. As Master Corporal Miller looked to his left, he saw acyclist hit by a car. He did not notice any trucks in the intersection. Hetried to render assistance to Mr. Dudzicki, but his injuries were toosevere.

(c) The Speed of the BMW: Collision Reconstruction16 Det. Sean Davey was qualified to give opinion evidence in collision

reconstruction. While his testimony touched on a number of issues, themost important was speed.

17 The BMW had an anti-locking braking system. Det. Davey found noskid marks on the road, indicating that the “brakes were not applied in amanner that would lock those tires up.” Thus, the vehicle was brought toa “controlled stop,” 31 metres from the point of impact.

18 Det. Davey estimated a number of measures by using video surveil-lance recordings from the gas station. When the BMW entered the inter-section, the light had been red for 6 seconds. This would have been inaddition to a 3.9 second amber-to-red signal time lapse.

19 Det. Davey calculated the speed of the BMW based on 2 frames fromthe video. The camera recorded images at a rate of 1 frame per second(movies are generally 60 frames per second). The first frame showed theshadow of the BMW as it approached the intersection. The second frameshowed Mr. Dudzicki suspended above the vehicle, after being hit. Basedon these images and other measurements and calculations, Det. Daveyestimated that the BMW was travelling at 67 km/h (+/-5%) just afterhitting Mr. Dudzicki. This calculation assumed that the car was travellingat a constant speed. However, the second frame shows that the BMWwas “pitched forward”, causing the hood of the car to be lower than itwould be while stationary. This was confirmed by comparing the damage


to the bike with the damage to the car. Det. Davey concluded that the carwas braking and was going much faster as it entered the intersection.

20 Det. Davey testified that, assuming that Mr. Aleksev was driving 67km/h as he approached the intersection, he would have been 113m fromthe intersection when the signal changed. However, the Crown allegesthat he was going faster and that 67 km/h was a minimum speed. As Det.Davey testified, the BMW was “positively not slower at the time of im-pact,” a moment that was not captured in any of the surveillance frames.

21 The video evidence is also important because it shows a large truckentering the intersection, moving southbound on Kodiak. It slowlymoved forward to make a left turn, but stopped short. The BMW wasdriven around the front of the truck and entered the intersection. It islikely that the truck blocked Mr. Aleksev’s view of Mr. Dudzicki, andvice versa.

22 Det. Davey testified that the BMW had no mechanical deficienciesapart from a worn brake pad, which was insignificant. However, the ve-hicle was not drive tested.

23 Det. Davey acknowledged being trained in the use of radar devices.He was also trained in making visual estimates of car speeds. He saidthat it is possible for laymen to “roughly estimate” speeds and that it iseasier to do so when a car is well above a speed limit.

(d) Mr. Aleksev’s Evidence24 Mr. Aleksev purchased the BMW a month before this incident. He

responded to an on-line advertisement and bought it for $800. A friend,whose full name never revealed, accompanied Mr. Aleksev to buy thecar. This friend brought “dealer plates” with him and put them on the carbecause Mr. Aleksev did not have insurance. In cross-examination, Mr.Aleksev said that the dealer plates did not belong to his friend, but in-stead to his friend’s friend.

25 Mr. Aleksev testified that he only drove the BMW only one or twotimes before the collision. He did not properly register the car, nor did heobtain a safety inspection. He affixed different dealer plates to the car,this time from his father’s tire shop, believing that the car would be cov-ered by his father’s business insurance policy.

26 On the morning of the collision, Mr. Aleksev departed from his par-ents’ home. He was going to his father’s tire shop on Sheppard, veryclose to the scene of the collision. Mr. Aleksev originally testified that he


had driven this road at least 100 times. In cross-examination, he said thathe had been in vehicles taking this route about 100 times, but only 50times as a driver.

27 Mr. Aleksev testified that, as he was travelling west on Sheppard, hefaced a green light at Allen and went through the intersection at 60 km/h.He maintained this speed as the road curves north. He acknowledged see-ing a school bus travelling slower than he was. Mr. Aleksev said hepassed the school bus safely and at the speed limit. He said he looked athis speedometer.

28 Mr. Aleksev testified that, as he continued towards the intersection,he adjusted the heat in his car. He looked at the knobs on the console“momentarily.” Almost in the same breath, Mr. Aleksev said, “I was justchecking the radio.” When he looked up again, he saw a truck movingtowards him. I believe that Mr. Aleksev meant that it was moving intothe intersection in a perpendicular direction. The truck seemed to stop fora moment. Mr. Aleksev assumed that the driver saw him. Mr. Aleksevmoved his vehicle into the left lane to get around the truck. As he did so,he saw the “cyclist popping out of nowhere.”

29 Mr. Aleksev acknowledged that the light was red. He did not see any-one in the crosswalk. Mr. Aleksev said he first applied the brakes waswhen he saw the cyclist. However, in cross-examination he said he ap-plied his brakes when he saw the truck. Mr. Aleksev said that the brakesdid not perform as he expected. He thought they would make a squealingsound and would immediately stop the car. He had no previous difficul-ties with his brakes.

30 Mr. Aleksev was inconsistent about when he checked his speedome-ter. He said that, as he took the curve towards the lights at Kodiak, he“assumed” he was travelling 60 km/h. On the other hand, he insisted thathe checked the speedometer at some point.

31 Mr. Aleksev was familiar with the intersection at Kodiak and had notrouble with it in the past. He knew it was a busy area and that he mightface an amber or red light. Curiously, Mr. Aleksev said that it was brightthat day and he referenced an “open field” to his left as he proceededalong the road. However, there was no open field at that location. It isirrelevant in any event. There were multiple signal stands facing in hisdirection. The sun was at his back.

32 Mr. Aleksev denied that he was speeding and that he almost lost con-trol when he passed the school bus moments before hitting Mr. Dudzicki.He suggested that his car might have sounded loud because of a modified


manifold. Mr. Aleksev insisted that he did not see Mr. Dudzicki until justbefore he collided with him. He thought it was safe to go through theintersection when he did. Also, and without prompting, Mr. Aleksevmentioned that a pedestrian on foot would not have been moving as fastas Mr. Duzicki on his bike was that day.

(e) Key Findings33 In addition to other findings below, I reach the following factual

conclusions:

(a) Mr. Dudzicki had the right of way in the intersection. The videoevidence shows he obeyed the traffic signals and only started onhis path when he was permitted to do so;

(b) Mr. Aleksev drove into the intersection against a red light. On allof the evidence, I conclude that the light had been red for 6seconds before Mr. Aleksev entered the intersection. The preced-ing amber light was more than 3 seconds long;

(c) Mr. Aleksev was driving well above the speed limit when he en-tered the intersection; and

(d) I cannot accept much of Mr. Aleksev’s evidence. His evidencechanged on a number of issues, including: (i) whether he was ad-justing the heat in his car or checking his radio; (ii) when (or if) hechecked his speedometer; (iii) when he applied the brakes; and(iv) the origin of the first set of dealer plates. I was also puzzledby his explanation for not properly registering his vehicle. I do notuse the evidence concerning insurance and registration to inferthat, because Mr. Aleksev may have been careless in his obliga-tions as a purchaser, he is more likely to have committed the of-fences. I use this evidence (the admissibility of which was notcontested) in assessing Mr. Aleksev’s credibility only.

Analysis

(a) Introduction34 Causation is not in issue. As the trial progressed, counsel for Mr.

Aleksev conceded that the evidence established causation. This is a well-founded concession. The evidence overwhelming proves that Mr. Alek-sev was a significant contributing cause of Mr. Dudzicki’s death: see R.v. Nette (2001), 158 C.C.C. (3d) 486 (S.C.C.) and R. v. Maybin (2012),283 C.C.C. (3d) 275 (S.C.C.), at pp. 281-282.


35 During the evidence of Det. Davey, there was some suggestion thatthe law requires cyclists to dismount and walk their bikes at intersectioncrosswalks. Moreover, in his testimony, Mr. Aleksev volunteered thatMr. Dudzicki was moving faster than a pedestrian. In this case, it doesnot impact on causation. Mr. Simrod, on behalf of Mr. Aleksev, did notsuggest otherwise. The sole issue is whether Mr. Aleksev’s driving wascareless, dangerous or criminally negligent.

(b) Dangerous Driving Causing Death (ss. 249(1), (4))36 Dangerous driving is defined in s. 249(1) of the Criminal Code as

follows: 249(1) Everyone commits an offence who operates

(a) a motor vehicle in a manner that is dangerous to thepublic, having regard to all the circumstances, includingthe nature, condition and use of the place at which themotor vehicle is being operated and the amount of trafficthat at the time is or might reasonably be expected to be atthat place...

By virtue of s. 249(4), when death is caused in these circumstances, themaximum penalty is 14 years’ imprisonment.

37 The fault requirements for s. 249(1) are discussed in R. v. Beatty(2008), 228 C.C.C. (3d) 225 (S.C.C.) and in R. v. Roy (2012), 281 C.C.C.(3d) 433 (S.C.C.). In Roy, the Court stressed that it is “critically impor-tant to ensure that the fault requirement for dangerous driving has beenestablished.” (p. 443) Writing for the Court, Cromwell J. explained at p.443:

The distinction between a mere departure, which may support civilliability, and the marked departure required for criminal fault is amatter of degree. The trier of fact must identify how and in what waythe departure from the standard goes markedly beyond merecarelessness.

[emphasis in the original]

38 In terms of actus reus, Cromwell J. held that s. 249 calls for an objec-tive inquiry into whether the driving was dangerous to the public. As hecautioned at pp. 444-445, “the focus of this inquiry must be on the riskscreated by the accused’s manner of driving, not the consequences, suchas an accident in which he or she was involved.”

39 The mens rea component of the offence turns on whether the mannerof driving was the result of a “marked departure from the standard of


care which a reasonable person would have exercised in the same cir-cumstances”: Roy, at p. 445 and Beatty, at p. 250. In Roy, Cromwell J.held that this element has two components. First, it should be askedwhether a reasonable person would have foreseen the risk and takensteps to avoid it. The second question is whether the accused’s failure toforesee the risk and take steps to avoid it amounted to a marked depar-ture from the standard of care expected of a reasonable person in theaccused’s circumstances.

40 In determining whether a marked departure has been proved, a modi-fied objective standard is employed. This standard places the reasonableperson in the accused’s circumstances, but personal attributes (such asage, experience, etc) short of incapacity are irrelevant: Beatty, at pp. 249-250. In Roy, Cromwell J. further elaborated on proof of this fault require-ment at p. 446:

Generally, the existence of the required objective mens rea may beinferred from the fact that the accused drove in a manner that consti-tuted a marked departure from the norm. However, even where themanner of driving is a marked departure from normal driving, thetrier of fact must examine all of the circumstances to determinewhether it is appropriate to draw the inference of fault from the man-ner of driving. The evidence may raise a doubt about whether, in theparticular case, it is appropriate to draw the inference of a markeddeparture from the standard of care from the manner of driving. Theunderlying premise for finding fault based on objectively dangerousconduct that constitutes a marked departure from the norm is that areasonable person in the position of the accused would have beenaware of the risk posed by the manner of driving and would not haveundertaken the activity: Beatty, at para. 37.

[emphasis added]

41 The Crown relies on a number of features of Mr. Aleksev’s conductto establish dangerous driving, especially his speed. As discussed above,the precise speed of the BMW was not established. Det. Davey was ableto say that it was going 67 km/h (+/- 5%) immediately after hitting Mr.Dudzicki and that it was braking. I also rely on the evidence of the threelaypersons (Messrs. Manouchehri, Matzliach and Greber) who providedspeed estimates. Collectively, they established a range of 90 to 110 km/h,with complete convergence at the lower level. I am satisfied that thespeed estimate of Mr. Manouchehri was completely independent ofMessrs. Matzliach and Greber. It might be said that the latter were notindependent of each other, given their association as colleagues. How-


ever, the evidence of these two men was inconsistent on a number ofpoints, restoring my confidence in each making their own estimate of thespeed.

42 I find the speed estimate evidence of Messrs. Manouchehri, Matzliachand Greber to be helpful: see R. v. Graat (1982), 2 C.C.C. (3d) 365(S.C.C.) and Hon. David Watt, Watt’s Manual of Criminal Evidence -2015 (Toronto: Carswell, 2015), at §30.01. I appreciate that all 3 menhad just a brief period of time to observe the BMW that morning. Butthis is often the case with speed estimate opinion evidence. This evidencemust be considered in context. It was bolstered somewhat by Det. Davey,especially given that his calculations generated a minimum speed esti-mate of a braking car.

43 On all of the evidence, I conclude that as the BMW approached theintersection, it was travelling in the range of 90 km/h. This is signifi-cantly over speed limit. Moreover, it must remembered that, at the criti-cal time of the collision, the speed of the car is not to be measuredagainst the speed of other cars moving in the same direction. The BMWwas travelling at 90 km/h when it should have been stationary.

44 In some circumstances excessive speed may be enough to constitutedangerous driving: see R. v. Richards (2003), 174 C.C.C. (3d) 154 (Ont.C.A.) and R. v. M. (M.K.) (1998), 35 M.V.R. (3d) 319 (Ont. C.A.). Butthe Crown relies on more than just excessive speed at the time of impact;it also relies on the manner of driving that preceded the collision. Thisincludes the speed and erratic driving observed by Mr. Manouchehriwhen Mr. Aleksev’s car passed the school bus. I accept his evidence thatMr. Aleksev had to take evasive action when passing the school bus, thetype of vehicle that other drivers ought always to approach with caution.

45 The Crown also relies on the fact that, while driving so fast, Mr.Aleksev chose to remove his attention from the road. As I have alreadynoted, Mr. Aleksev’s evidence was problematic on this issue. On the onehand, he said that he was adjusting the heat. This seems unlikely givenhe was almost at his destination. On the other hand, Mr. Aleksev saidthat he was checking his radio. This seems more probable in the circum-stances. In either situation, it was a dangerous thing to do when drivingat a high rate of speed when there was so much pedestrian and vehiculartraffic in the area, an area that was well known to Mr. Aleksev.

46 The combination of speed and distraction created a real hazard thatany reasonable person in Mr. Aleksev’s circumstances would have real-ized. As a result, he did not notice that the light had changed and a truck


had entered the intersection. Without braking, Mr. Aleksev drove aroundthe truck and into the intersection, completely blind to what or who wason the other side. It could have been anybody - an elderly pedestrian, agroup of school children, members of the Armed Forces going to work ora parent pushing a stroller. It was Mr. Dudzicki on his bike.

47 I am satisfied beyond a reasonable doubt that this conduct constitutesa marked departure from what is expected of the reasonable person in thecircumstances. Had Mr. Aleksev not attempted to take evasive action andcollided with the truck coming through the intersection, I still wouldhave characterized his driving in the same manner.

48 I find Mr. Aleksev guilty of dangerous driving causing the death ofMr. Dudzicki.

(c) Criminal Negligence Causing Death (ss. 219 and 220)49 I turn now to the offence of criminal negligence causing death. For

this offence, a greater departure from what is expected of a reasonableperson must be established. This flows from the wording of the sectionand the manner in which the courts have interpreted it.

50 Section 219(1) of the Criminal Code does not require mere proof ofdangerous conduct (e.g., driving); instead, to prove criminal negligence,it must be established that the conduct of the accused person “shows awanton and reckless disregard for the lives and safety of other persons.”Compared to dangerous driving, the departure from the norm must be“marked and substantial”: see R. v. F. (J.) (2008), 236 C.C.C. (3d) 421(S.C.C.), at p. 212. The Crown must prove either that the accused wasaware of the obvious and risk to the lives or safety of others, but wentahead anyway, or gave no thought to the risk.

51 Courts have attempted to explain the distinction between “a markeddeparture” vs. “a marked and substantial departure”, often in the contextof driving cases. For example, in R. v. L. (J.) (2006), 204 C.C.C. (3d) 324(Ont. C.A.), Weiler J.A. noted at p. 329 that “criminal negligence caus-ing death is at the high end of a continuum of moral blameworthiness,”cascading down to dangerous driving and then careless driving underprovincial statutes. She noted that, “[w]hether specific conduct should becategorized as criminal negligence is one of the most difficult and uncer-tain areas in the criminal law...” Citing R. v. Anderson (1990), 53 C.C.C.


(3d) 481 (S.C.C.), at 484-485, Weiler J.A. drew the following distinctionat pp. 329-330:

Criminal negligence requires a more elevated standard. The depar-ture from the norm must be more marked in both the physical and themental elements of the offence. See R. v. Palin (1999), 135 C.C.C.(3d) 119 (Que. C.A.), leave to appeal refused...The requirement for agreater marked departure in both the physical and mental elements isconsistent with the higher level of moral blameworthiness associatedwith criminal negligence, namely, wanton or reckless disregard forthe life or safety of others. See R. v. Fortier (1998), 127 C.C.C. (3d)217 (Que. C.A.).

52 Similarly, in R. v. Willock (2006), 210 C.C.C. (3d) 60 (Ont. C.A.), theCourt grappled with this distinction, at p. 72:

This was an unusual criminal negligence trial in at least two respects.First, there was little, if any, dispute as to the credibility or reliabilityof any of the witnesses who testified. Second, the conduct said toconstitute the act of criminal negligence occurred entirely within atwo to three second timeframe. There was nothing in the appellant’sconduct or his manner of driving before that brief timeframe that of-fered any support for the Crown’s case. To the contrary, the appel-lant’s driving prior to those fateful seconds was entirely proper.

There can be no doubt that conduct occurring in a two to three sec-ond interval can amount to a marked departure from the standard of areasonable person and demonstrate a wanton or reckless disregard forthe life or safety of others. However, conduct that occurs in such abrief timeframe in the course of driving, which is otherwise proper inall respects, is more suggestive of the civil rather than the criminalend of the negligence continuum: see R. v. Waite (Ont. C.A.), supra,at 342; R. v. Hundal (1993), 79 C.C.C. (3d) 97 at 106 (S.C.C.).

53 Before he hit Mr. Duzicki, Mr. Aleksev’s driving was anything butpristine. As I have detailed, Mr. Aleksev was on a reckless course thatmorning, almost clipping a school bus on a road with a pronouncedcurve. After taking corrective action, he continued to drive at a high rateof speed towards a busy intersection. If this was not treacherous enoughalready, Mr. Aleksev decided to adjust his radio, which took his attentionaway from the road, so much so that the light changed from green-to-amber-to-red a number of seconds before realizing it. In the meantime, atruck drove into the intersection. Instead of slamming on his brakes andattempting to stop, Mr. Aleksev decided to drive blindly into the inter-section, giving no thought to what was on the other side of the truck. Mr.Aleksev saw Mr. Dudzicki, he braked, but it was too late.


54 On this evidentiary basis, I am also satisfied beyond a reasonabledoubt that Mr. Aleksev’s conduct also reflected a marked and substantialdeparture from what is expected of a reasonable person in the circum-stances. That morning, Mr. Aleksev showed a wanton and reckless disre-gard for the safety and lives of others, one that led to the death of Mr.Dudzicki.

55 I find Mr. Aleksev guilty of criminal negligence causing the death ofMr. Dudzicki.

(d) Unlawful Act Manslaughter (s. 222(5)(a) and (b))56 In the normal course, the findings I have already made would be suf-

ficient to decide this case. However, the Crown has also charged Mr.Aleksev with manslaughter based on the unlawful act of dangerous driv-ing (s. 222(5)(a)) and by criminal negligence (s. 222(5)(b)).

57 Manslaughter based on criminal negligence is indistinguishable fromcriminal negligence causing death. There are no further fault require-ments. However, to obtain a conviction for manslaughter under s.222(5)(a), the Crown must prove the predicate offence (dangerous driv-ing), and that the offence was objectively dangerous, in the sense that itwas likely to injure: R. v. DeSousa (1992), 76 C.C.C. (3d) 124 (S.C.C.).Moreover, the Crown must prove objective foreseeability of the risk ofbodily harm that is neither trivial nor transitory: R. v. Creighton (1993),83 C.C.C. (3d) 346 (S.C.C.) and R. v. Sarrazin (2011), 276 C.C.C. (3d)210 (S.C.C.), at p. 219. As Watt J. (as he then was) explained in R. v.Worrall (2004), 189 C.C.C. (3d) 79 (Ont. S.C.J.), at p. 84, the Crownmust prove that a reasonable person in the accused’s circumstanceswould foresee a risk of bodily harm of the nature described, although notnecessarily the precise harm that occurred.

58 In this case, there is ample evidence to support this finding. While areasonable person may not have foreseen that a cyclist was on the otherside of the truck, it would have been obvious to the reasonable personthat everyone at the intersection (whether in a vehicle, on foot or on abike) was in danger of being injured by Mr. Aleksev’s driving. Hence myfinding that Mr. Aleksev showed a wanton and reckless disregard for thesafety and lives of others.

59 I find Mr. Aleksev guilty of manslaughter in the death of Mr.Dudzicki on the basis of ss. 222(5)(a) and (b) of the Criminal Code.


Conclusion60 In concluding these reasons, I make the following observations. At

the time of arraignment, I inquired about the inclusion of the manslaugh-ter charge.1 The Crown advised that, in this case, “there are some cir-cumstances that put it beyond just the criminal negligence aspect.” Nowthat the trial has concluded, this additional aspect is not apparent to me.During submissions, I was further told that: “I don’t know what we did inthe past, but I can tell you in the future you may be seeing more andmore of these cases as manslaughters, as opposed to just the drivingoffences.”

61 Looking ahead, although Mr. Aleksev has been found guilty of allthree offences, the rule against multiple convictions requires that I entera conviction on only one and impose conditional stays on the others: R.v. Kienapple (1974), 15 C.C.C. (2d) 524 (S.C.C.) and R. v. Prince(1986), 30 C.C.C. (3d) 35 (S.C.C.). The Crown is entitled to have a con-viction registered on the most serious offence, determined by the maxi-mum punishment: R. v. Loyer (1978), 40 C.C.C. (2d) 291 (S.C.C.), at p.294. In this case, however, criminal negligence causing death and man-slaughter by criminal negligence are offences of equal gravity.2 Theyboth carry maximum sentences of life imprisonment. Consequently, dur-ing the sentencing phase of proceedings, I invite submissions on whetherit would be appropriate to enter a conviction for manslaughter as op-posed to criminal negligence causing death.3

Accused convicted.

1 The type of offending in this case is typically criminalized by dangerous driv-ing causing death or criminal negligence causing death. When alcohol is in-volved, offences under ss. 255(3) and (3.1) are also available.2 Conceptually, they are indistinguishable. See Hon. David Watt, Watt’s Manualof Criminal Jury Instructions, 2nd ed. (Toronto: Carswell, 2015), at p. 750: “De-spite the difference in name, manslaughter by criminal negligence is indistin-guishable from criminal negligence causing death.” See also R. v. Morrisey(2000), 148 C.C.C. (3d) 1 (S.C.C.), at p. 28.3 See R. v. Layugan, [2016] O.J. No. 1725 (Ont. S.C.J.), at paras. 75-83. See thethoughtful discussion in the reasons of Chief Justice Freedman in R. v. Williams(1981), 63 C.C.C. (2d) 141 (Man. C.A.), at pp. 148-151.

R. v. Garwal 151

[Indexed as: R. v. Garwal]

Her Majesty the Queen ex re Region of Halton and LamarGarwal

Ontario Court of Justice

Docket: 5229554B

2016 ONCJ 217

P. Macphail J.P.

Heard: March 18, 2016

Judgment: April 15, 2016

Motor vehicles –––– Offences and penalties — Penalties — Fine — Miscella-neous –––– Set fines — Accused was charged with speeding, 120 km/h in 100km/h zone — Matter was resolved before trial occurred and accused enteredguilty plea to amended charge of disobey sign contrary to s. 182(2) of HighwayTraffic Act — Fine of $100 plus court costs and victim surcharge was im-posed — Joint submission to impose set fine of $85 was rejected — Set fineswere statutorily reserved for cases that did not go to trial or where there weremitigating factors — For court to impose set fine following plea on trial daywould be error of law and bring sentencing practices following conviction inPart I proceedings into disrepute — Set fine was meant to be reduced fine thatshared with accused some of costs to public that were avoided due to plea —These costs could only be avoided if plea and conviction occurred before trialday — To permit defendant to have benefit of both public cost required to en-sure right to trial as well as reduced fine after conviction on trial day was con-trary to public interest — Permitted range of penalty was from $60 to $500 — Incircumstances where there was no record alleged nor any other aggravating cir-cumstances it seemed reasonable that penalty should be found within lowerrange of that permitted — Fine of $100 appeared to be sufficiently punitive toensure general deterrence without being unduly harsh in circumstances of of-fence and offender.

Motor vehicles –––– Offences and penalties — Offences — Driving of-fences — Failure to obey traffic sign or signal –––– Accused was charged withspeeding, 120 km/h in 100 km/h zone — Matter was resolved before trial oc-curred and accused entered guilty plea to amended charge of disobey sign con-trary to s. 182(2) of Highway Traffic Act — Fine of $100 plus court costs andvictim surcharge was imposed — Joint submission to impose set fine of $85 wasrejected — Set fines were statutorily reserved for cases that did not go to trial orwhere there were mitigating factors — For court to impose set fine followingplea on trial day would be error of law and bring sentencing practices following


conviction in Part I proceedings into disrepute — Set fine was meant to be re-duced fine that shared with accused some of costs to public that were avoideddue to plea — These costs could only be avoided if plea and conviction occurredbefore trial day — To permit defendant to have benefit of both public cost re-quired to ensure right to trial as well as reduced fine after conviction on trial daywas contrary to public interest — Permitted range of penalty was from $60 to$500 — In circumstances where there was no record alleged nor any other ag-gravating circumstances it seemed reasonable that penalty should be foundwithin lower range of that permitted — Fine of $100 appeared to be sufficientlypunitive to ensure general deterrence without being unduly harsh in circum-stances of offence and offender.

Cases considered by P. Macphail J.P.:

R. v. Appiah (2012), 2012 ONCJ 754, 2012 CarswellOnt 15602, 38 M.V.R. (6th)173, [2012] O.J. No. 5851 (Ont. C.J.) — considered

R. v. Cotton Felts Ltd. (1982), 2 C.C.C. (3d) 287, C.E.S.H.G. 95,056, [1982]O.J. No. 178, 1982 CarswellOnt 1235 (Ont. C.A.) — considered

R. v. Dosik (2006), 2006 ONCJ 251, 2006 CarswellOnt 4312, [2006] O.J. No.2864 (Ont. C.J.) — considered

R. v. Tsicos (2006), 2006 CarswellOnt 6156, 216 O.A.C. 104, [2006] O.J. No.4041 (Ont. C.A.) — referred to

R. v. Weber (2003), 2003 CarswellOnt 1465, 64 O.R. (3d) 126, 39 M.V.R. (4th)99, [2003] O.J. No. 1491 (Ont. C.J.) — considered

R. v. Winlow (2009), 2009 ONCA 643, 2009 CarswellOnt 5208, [2009] O.J. No.3691, 86 M.V.R. (5th) 171, (sub nom. York (Regional Municipality) v.Winlow) 99 O.R. (3d) 337, (sub nom. York (Regional Municipality) v.Winlow) 265 O.A.C. 326 (Ont. C.A.) — considered


Criminal Code, R.S.C. 1985, c. C-46Generally — referred tos. 718 — considereds. 718.1 [en. R.S.C. 1985, c. 27 (1st Supp.), s. 156] — considereds. 718.2 [en. 1995, c. 22, s. 6] — considered

Highway Traffic Act, R.S.O. 1990, c. H.8Pt. I — referred tos. 128 — considereds. 182 — considereds. 182(2) — considereds. 214(1) — considered

Provincial Offences Act, R.S.O. 1990, c. P.33Generally — referred tos. 1(1) “set fine” — considereds. 5.1 [en. 1993, c. 31, s. 1(3)] — considered

R. v. Garwal P. Macphail J.P. 153

s. 5.1(9) [en. 2009, c. 33, Sched. 4, s. 1(6)] — considereds. 5.1(9)(a) [en. 2009, c. 33, Sched. 4, s. 1(6)] — referred tos. 5.1(9)(b) [en. 2009, c. 33, Sched. 4, s. 1(6)] — referred tos. 7(1) — considereds. 8(1) — referred tos. 9 — considereds. 9.1 [en. 1993, c. 31, s. 1(3)] — referred tos. 12 — considereds. 12(1) — considereds. 45 — considereds. 45(3)(d) — referred tos. 61 — considered

SENTENCING of accused convicted of disobey sign contrary to s. 182(2) ofHighway Traffic Act.

G. Larson, for ProsecutionL. Carter, for Defendant, Lamar Garwal

P. Macphail J.P.:

Background1 On April 12, 2015 Lamar Garwal was charged with the offence of

speeding, 120 km/h in a 100 km/h zone, contrary to s. 128 of the High-way Traffic Act. The Defendant requested a meeting with a prosecutor aspermitted by s.5.1 of the Provincial Offences Act (‘the Act’), also knownas an early resolution meeting. That meeting occurred on September 22,2015. The matter did not resolve on that day and proceeded to trial. Thetrial was scheduled for March 18, 2016 in Burlington Provincial Of-fences court. L. Carter, a Paralegal Licensee, appeared at trial on behalfof Mr. Garwal. Mr. Garwal did not attend.

2 The matter resolved before the trial occurred and the Defendant en-tered a guilty plea to the amended charge of Disobey Sign, contrary to s.182(2) of the Highway Traffic Act. The parties jointly submitted that theset fine of $85.00 was appropriate in the circumstances.

3 $85.00 is the Set Fine (‘set fine’) established by the Chief Justice ofthe Ontario Court of Justice for the offence of Disobey Sign. The set finehas no direct applicability following an ‘in-court’ disposition of a Part 1proceeding, either by way of guilty plea before trial, or following a con-viction after trial. A fine approximating or equalling the set fine amount


is not precluded but the suitability of a fine of such quantum must with-stand the application of proper sentencing principles.

Set Fines4 Section 1(1) of the Act defines ‘set fine’ to mean ‘the amount of fine

set by the Chief Justice of the Ontario Court of Justice for an offence forthe purpose of proceedings under Part I and II’. These fines representthe penalty that is considered appropriate for a first offender who ispleading guilty in an out of court resolution, with no other mitigatingfactors to consider and no aggravating factors.

5 Set fines are applicable after convictions resulting from a resolutionreached following a meeting with a prosecutor pursuant to section 5.1 (9)of the Act (the ‘early resolution plea’), a guilty plea with representationspursuant to section 7(1) (often described as the ‘walk in guilty plea’),upon conviction after being found deemed not to dispute the charge pur-suant to s.9 of the Act or failing to appear a s.5.1 meeting with the prose-cutor or at trial pursuant to section 9.1 (‘fail to attend’ convictions). TheAct is silent on the applicability of set fines following a trial.

6 In R. v. Dosik, [2006] O.J. No. 2864, 2006 ONCJ 251 (Ont. C.J.) para29 Justice S. Armstrong of the Ontario Court of Justice held that set fineswere statutorily reserved for cases that did not go to trial or for caseswhere there were mitigating factors

7 Section 61 of the Act is headed ‘General Penalty’ and reads as fol-lows — ‘Except where otherwise expressly provided by law, every per-son who is convicted of an offence is liable to a fine of not more than$5,000’.

8 Justice Armstrong found that the s.61 General Penalty provisions toapply when a defendant is convicted after a guilty plea on trial day orafter a full trial (para 16). He went on to note that s.12 (1) of the Actfurther limited the size of fine as the proceeding had been commencedunder Part I of the Act. He acknowledges that a fine coincidentally ap-proximating the set fine could result ‘after considering the relevant sen-tencing factors and principles’ (para 18).

9 In R. v. Appiah, [2012] O.J. No. 5851 (Ont. C.J.) Mr. Justice Nakat-suru addressed suitability of imposing a set fine following a guilty pleaon trial day to the offence of speeding contrary to s.128 of the HighwayTraffic Act. He held that court had no ability to impose the set fine fol-lowing a conviction. The statutory fine must be imposed. He referred tothe decisions in R. v. Weber (2003), 64 O.R. (3d) 126 (Ont. C.J.) and R.


v. Winlow (2009), 99 O.R. (3d) 337 (Ont. C.A.) in support. It should benoted that the statutory fine for speeding is a series of specific and fixedamounts based upon the rate of found to be in excess of the permittedspeed.

10 In para. 7 he found as follows - ‘However, if the individual chooses tohave a trial, as the respondent did, and he or she is found guilty at court,then the payable fine is different, It is the statutory penalty governed bysubsection 128(14) of the Highway Traffic Act. The penalty is higher. Nodoubt deliberately so in order to encourage out of court settlements toavoid unnecessary use of judicial resources. The aforementioned provi-sions of the Provincial Offences Act no longer apply once the matter getsbefore a justice of the peace’.

11 Justice Nakatsuru acknowledged that the court in R. v. Winlow did notspecifically deal with set fines under the Provincial Act. He held in para.9 that ‘... the distinction is irrelevant. The result is the same. A set finewhich is an out of court payment is simply a figure that amounts to areduced fine. The justice of the peace has no authority to reduce the pen-alty in this fashion....’

12 There are a number of ways by which a defendant can take the benefitof a set fine. The first and most usual way is when she/he elects simply toacknowledge guilt and pay the set fine (plus the statutory costs and vic-tim surcharge fee) — s.8(1), the ‘payment out of court’ option. If thisoption is elected the defendant loses the opportunity to defer payment ofthe fine but also avoids the risk of increased penalty that any aggravatingfactors may present.

13 Set fines are specifically permitted (but not required) following guiltypleas and convictions in accordance with the ‘early resolution’ provi-sions of s.5.1 of the Act. The defendant elects to avail her/himself of theopportunity to have an out of court meeting with a provincial prosecutoras specifically permitted by s.5.1 of the POA and a resolution satisfac-tory to both parties is reached. The prosecutor has generous latitude, con-sistent with the underlying elements and facts, in the range of resolutionsto be offered; including amendments to the charge to reflect either a sub-stituted charge or a change in a particular to be proven in the originalcharge such as the rate of speed or overage in weight alleged.

14 The defendant can then appear before a justice (s.5.1 (9) (a)) andenter a guilty plea. Following conviction the court is specifically permit-ted to ‘impose the set fine or other such fine as is permitted by law in


respect to the offence for which the plea is entered’ (s 5.1(9) (b)). Thecourt is not bound to impose the set fine.

15 The POA specifically requires the imposition of the set fine followinga so called ‘deemed not to dispute’ conviction (s.9) or ‘fail to attend’conviction (s.9.1). The court has no discretion to impose any other fineamount.

16 The s.5.1 process contemplates a limited expenditure of public re-sources, certainly a lesser expenditure than required in honouring aparty’s right to trial. No witnesses are required. The public is spared thecost of attendance by police and other public witnesses. Private or civil-ian witnesses are not forced to interrupt their weekday life and bear thecost of lost time or income, costs that are only partially and modestlyreimbursed by the public.

17 Ms. Carter raised a serious practical deficiency in the current proce-dure of conducting s.5.1 meetings. In most instances disclosure is notprovided to defendants or their agents at these meetings. In Halton a Dis-closure Request Form is provided when there is no resolution and thematter is to proceed to trial but that disclosure is not provided until aftera trial date has been set and notice of trial provided to the defendant.Retained agents are unable to fulfil their professional obligations to de-fendants if they are not able to review disclosure.

18 I accept this concern as valid on its face. While there may be in-stances where an informed decision can be reached without receiving andreviewing disclosure, those instances are uncommon. Despite that, itdoes not follow that this deficiency requires the court to import the au-thority to permit the imposition set fines on trial day. There does notappear to be any statutory authority to do so.

19 There are a number of practical ways in which the s.5.1 meeting pro-cess can be remedied. They include the following:

• The Prosecutor could provide disclosure to defendants concurrentwith delivery of the written notice of the s.5.1 meeting.

• The written request for s.5.1 meeting form could be amended toallow the defendant to request the receipt of disclosure for deliv-ery either in advance of, or at the s.5.1 meeting.

• The s.5.1 meeting could be adjourned to a later date and continuedon that date when disclosure is requested but not available at thecommencement of the meeting.


20 The implementation of any of those options would be consistent withthe legislative intent of the s.5.1 provisions and ensure the effective oper-ation of the s.5.1 statutory mechanism. It would protect for the defendantthe benefit of the lower set fine regimen in return for the saving of publicresources. There does not appear to be any statutory prohibition in adopt-ing any of those measures.

21 The administration of the POA courts was transferred to the Haltonmunicipalities via a December 2000 agreement styled ‘Memorandum ofUnderstanding’ between Her Majesty the Queen in Right of Ontario asrepresented by the Attorney General and the City of Burlington andTowns of Oakville, Halton Hills and Milton.

22 Schedule 1 to that agreement is headed ‘Standards for Prosecutionsby Municipalities’. S.2.3.6. of the Schedule provides that the municipali-ties are responsible for ‘ensuring provision of full and timely disclosureto defendants upon request’.

23 The Halton municipalities have developed a number of pro-activesteps and procedures to make defendants aware of the right to receiveand review disclosure prior to trial and to assist in requesting this disclo-sure. I am confident that the municipalities can find practical and effi-cient ways of ensuring the availability of disclosure at the earlier or ‘up-stream’ stage of s.5.1 meetings.

Penalty24 The Provincial Offences Act does not codify sentencing principles.

The Court is guided by case law and, on occasion, the Criminal Code ofCanada when seeking guidance on sentencing principles. The importa-tion of the Criminal Code s.718, s.718.1 and s.718.2 sentencing princi-ples is rarely required following conviction in Part I proceedings and Ineed not resort to those principles today in order to determine the appro-priate penalty for Mr. Garwal.

25 In the most Part 1 conviction sentencing it would be rare to considerprinciples other than general and specific deterrence. Specific deterrenceusually becomes a factor to consider in a Part I proceeding only when thedefendant has a record of convictions for the same or similar offence.

26 R. v. Cotton Felts Ltd., [1982] O.J. No. 178 (Ont. C.A.) was a deci-sion of the former Supreme Court of Ontario — Court of Appeal and is afoundational case in establishing the goals and principles of sentencing inregulatory offences. The court confirmed that general deterrence is theparamount factor to be considered in arriving at an appropriate sentence


in public welfare legislation. This general deterrence is to generally beachieved by the imposition of fines.

27 S.12 of the Act further limits the s.61 general penalty provisionswhere a proceeding was commenced by a certificate of offence pursuantto Part I of the Act. It reads as follows:

Where the penalty prescribed for an offence includes a fine of morethan $1,000 or imprisonment and a proceeding is commenced underthis Part, the provision for fine or imprisonment does not apply andin lieu thereof the offence is punishable by a fine of not more thanthe maximum fine prescribed for the offence or $1,000, whichever isthe lesser.

Joint Submissions28 The parties have jointly submitted that the set fine of $85.00 is the

appropriate penalty in the circumstances of Mr. Garwal’s conviction.29 While joint submissions are not binding on a sentencing justice, the

case law in both criminal and regulatory proceedings is consistent infinding that courts are to give considerable deference to jointsubmissions.

30 The Act specifically contemplates occasions where a joint submissionwill not be accepted. S.45 of the Act mandates that before the court canaccept a guilty plea the justice must satisfy him/her self that a defendantunderstand that ‘the court is not bound by any agreement made betweenthe defendant and the prosecutor’ — s.45 (3) (d).

31 A joint submission may only be rejected if its imposition would becontrary to the public interest or bring the administration of justice intodisrepute. The court must advise the parties of the court’s intention topossibly reject the joint submission and give them the opportunity tomake further submissions. Further submissions often clarify and givesupport to the sufficiency of the penalty requested. It is prudent to ask forclarification or further information before raising the possibility that thejoint submission may be rejected.

32 If the joint submission is rejected the court must provide reasons whythe penalty submitted would be contrary to the public interest or wouldbring the administration of justice into disrepute. The court must thenfully consider the circumstances of the offence and the offender beforeimposing sentence — R. v. Tsicos, [2006] O.J. No. 4041 (Ont. C.A.).

33 Why would the imposition of the set fine upon conviction after thedefendant elected the right to have a trial be contrary to the public inter-


est or bring the administration of justice into disrepute? The range ofpossible penalty is already quite narrow in a Part I proceeding. It wouldbe easy to conclude that it would not be practically possible to meet thistest given the relatively modest potential difference in punishment be-tween that resulting from a jointly submitted set fine and a fine that is theresult of proper consideration of sentencing principles.

34 There are at least two reasons why the set fine would have this nega-tive effect.

35 The first reason is one of jurisdiction. Ontario Court of Justice is astatutory court. The powers of the court are limited to what the governinglegislation and attendant case law authorises. The Act only speaks to theimposition of a set fine in specific circumstances as reviewed earlier inthis decision. As noted, the Act is silent as to the applicability of set finesfollowing a request for trial. Case law has filled that silence. The court inboth R. v. Dosik and R. v. Appiah (supra) have found that the set fines arestatutorily reserved for case that do not go to trial or where there weremitigating factors. The court has no power to impose a set fine followinga plea or conviction after trial on trial day. To do so would be an error inlaw and would bring into disrepute, at a minimum, the sentencing prac-tices following conviction in a Part I proceeding.

36 The second reason is the need to respect the legislative intent thatthese proceedings take place with economy and efficiency. The set fine ismeant to be a reduced fine that shares with the defendant some of thecosts to the public that were avoided due to the plea. Those costs canonly be avoided if the plea and conviction occur before trial day. On trialday there are no savings to share. The time and expense of assemblingthe court and the trial witnesses has been incurred and cannot be re-funded. A defendant always has the right to have a trial. Society has aresponsibility to ensure that the necessary resources are available forsuch trails on a timely basis. This comes at a cost to both the generalpublic and those private citizens who have no option but to participate aswitnesses. The public has the right, in return, to see these resources usedefficiently and economically. A defendant should not have the benefit ofboth the public cost required to ensure a right to trail as well as a reducedfine after conviction on trial day. To permit otherwise would breach ourpublic agreement with each other and is contrary to the public interest.

37 For the reasons set out above, I must reject the joint submission toimpose the set fine of $85.00.


Decision on penalty38 S. 214 (1) of the Highway Traffic Act further limits the general pen-

alty provision of s.61 of the Act is headed ‘General Penalty’ and reads asfollows — ‘Every person who contravenes this Act or any regulation isguilty of an offence and on conviction, were a penalty for the contraven-tion is not otherwise provided herein, is liable to a fine of not less than$60 and not more than $500.’

39 Section 182 neither contains nor references a specific penalty provi-sion. I am satisfied that the s.214(1) Highway Traffic Act general penaltyrange of fine sets out and limits the permitted range of penalty for a con-travention of s. 182(2).

40 There was no evidence that Mr. Garwal has a record of this offence orsimilar offences. No aggravating circumstances were proven or acknowl-edged. Specific deterrence need not be considered.

41 The permitted range of penalty is from $60 to $500. In circumstanceswhere there is no record alleged nor any other aggravating circumstancesit seems reasonable that the penalty should be found within the lowerrange of that permitted. Here the set fine becomes a helpful measure forwe know that this is the reduced amount. A fine of $100 is approximately20% higher that the set fine yet still falls within the first quartile or 25%(maximum $125) of that permitted range. A $100 fine appears to be suf-ficiently punitive to ensure general deterrence without being undulyharsh in the circumstances of this offence and offender.

42 A fine of $100 plus court costs and victim surcharge is imposed.

Order accordingly.

R. v. Almasi 161

[Indexed as: R. v. Almasi]

Her Majesty the Queen and Hasti Almasi


Docket: CR-15-40000041-00AP

2016 ONSC 2943

R.F. Goldstein J.

Heard: January 28, 2016


Criminal law –––– Offences — Driving/care and control with excessive alco-hol — Elements — Care and control — General principles –––– Tow truckdriver found accused in front passenger seat of her car, which had slid off roadinto snowbank — Police officer observed odour of alcohol coming from accusedand that her eyes were red and puffy — Accused failed roadside screening testand provided breath samples that showed she was over legal limit — Accusedadmitted upon her arrest that she was drunk and had driven her car into snowbank; but at trial, she testified that man A whom she had met at nightclub wasdriving but had disappeared to get help — Accused’s friend AI also testified thatA was driving — Trial judge did not believe accused’s evidence about A or findthat it raised reasonable doubt — Accused was convicted of driving with exces-sive alcohol — Appeal by accused allowed — Primary issue at trial was credi-bility — Trial judge erred in her analysis of defence evidence — There was noquestion that accused was impaired, that she was properly arrested, and that shesaid incriminating things to police — It was open to trial judge to reject ac-cused’s testimony — AI’s evidence, if believed, was capable of raising reasona-ble doubt about whether accused was driving car — Trial judge did not evaluatecredibility of AI’s evidence at all — Same principle applied to accused’s evi-dence that she was scared to tell police about A because her mother would havebeen more upset about her being alone in car with strange man than about herencounter with police — There was element of speculation in trial judge’s find-ings — There was nothing implausible about young man abandoning his friendsto drive home two young women, one of whom had been flirting and dancingwith him, and both women provided explanations for permitting A in car —Trial judge was required to evaluate their credibility separately — It was error tospeculate about how they “should” or “would” have behaved in that situation —New trial ordered.

Criminal law –––– Trial procedure — Charging jury or self–instruction —Direction on onus and reasonable doubt — General principles –––– R. v. W.(D.) — Tow truck driver found accused in front passenger seat of her car, which


had slid off road into snowbank — Police officer observed odour of alcoholcoming from accused and that her eyes were red and puffy — Accused failedroadside screening test and provided breath samples that showed she was overlegal limit — Accused admitted upon her arrest that she was drunk and haddriven her car into snow bank; but at trial, she testified that man A whom shehad met at nightclub was driving but had disappeared to get help — Accused’sfriend AI also testified that A was driving — Trial judge did not believe ac-cused’s evidence about A or find that it raised reasonable doubt — Accused wasconvicted of driving with excessive alcohol — Appeal by accused allowed —Primary issue at trial was credibility — Trial judge misapplied test in R. v. W.(D.) — There was no question that accused was impaired, that she was properlyarrested, and that she said incriminating things to police — It was open to trialjudge to reject accused’s testimony — AI’s evidence, if believed, was capable ofraising reasonable doubt about whether accused was driving car — Trial judgedid not evaluate credibility of AI’s evidence at all — Same principle applied toaccused’s evidence that she was scared to tell police about A because her motherwould have been more upset about her being alone in car with strange man thanabout her encounter with police — There was element of speculation in trialjudge’s findings — There was nothing implausible about young man aban-doning his friends to drive home two young women, one of whom had beenflirting and dancing with him, and both women provided explanations for per-mitting A in car — Trial judge was required to evaluate their credibility separ-ately — It was error to speculate about how they “should” or “would” have be-haved in that situation — New trial ordered.

Evidence –––– Examination of witnesses — Previous statements — Coun-tering allegation of recent fabrication –––– Prior consistent statements — Towtruck driver found accused in front passenger seat of her car, which had slid offroad into snowbank — Police officer observed odour of alcohol coming fromaccused and that her eyes were red and puffy — Accused failed roadside screen-ing test and provided breath samples that showed she was over legal limit —Accused admitted upon her arrest that she was drunk and had driven her car intosnow bank; but at trial, she testified that man A whom she had met at nightclubwas driving but had disappeared to get help — Accused’s friend AI also testifiedthat A was driving — Trial judge did not believe accused’s evidence about A orfind that it raised reasonable doubt — Accused was convicted of driving withexcessive alcohol — Appeal by accused allowed on other grounds — Prior con-sistent statements are generally excluded because they tend to be self-servingand therefore have little or no probative value — However, prior consistentstatement may be admitted to rebut allegation of recent fabrication — Primaryissue at trial was credibility — Crown counsel alleged that accused’s story wasfabricated to meet exigencies of evidence — That is classic example of allega-tion of recent fabrication — Defence should have been permitted to admit priorconsistent statement to rebut allegation — However, it was not possible to find

R. v. Almasi 163

that trial judge erred as there was no argument and no requirement to make rul-ing — Failure of defence counsel to introduce statements at trial precluded rais-ing this issue on appeal for first time — There was insufficient factual record onwhich to evaluate issue.

Evidence –––– Character — Similar fact evidence — To demonstratescheme or plan –––– Collusion — Tow truck driver found accused in front pas-senger seat of her car, which had slid off road into snowbank — Police officerobserved odour of alcohol coming from accused and that her eyes were red andpuffy — Accused failed roadside screening test and provided breath samplesthat showed she was over legal limit — Accused admitted upon her arrest thatshe was drunk and had driven her car into snow bank; but at trial, she testifiedthat man A whom she had met at nightclub was driving but had disappeared toget help — Accused’s friend AI also testified that A was driving — Trial judgedid not believe accused’s evidence about A or find that it raised reasonabledoubt — Accused was convicted of driving with excessive alcohol — Appeal byaccused allowed — Primary issue at trial was credibility — Trial judge erred inher treatment of alleged collusion — Trial judge noted accused and AI had am-ple opportunity to collude, but did not find that there was actual collusion —AI’s evidence, if believed, was capable of raising reasonable doubt aboutwhether accused was driving car — Trial judge was required to evaluate AI’scredibility separately from that of accused, but did not do so — If accused waslying, then AI must also have been lying; and if they were lying, then they musthave colluded since their stories matched — In circumstances, trial judge wasrequired to make actual finding of collusion — Trial judge also erred in heranalysis of defence evidence and misapplied test in R. v. W. (D.) — New trialordered.

Cases considered by R.F. Goldstein J.:

Perka v. R. (1984), [1984] 2 S.C.R. 232, 13 D.L.R. (4th) 1, 55 N.R. 1, [1984] 6W.W.R. 289, 14 C.C.C. (3d) 385, 42 C.R. (3d) 113, 1984 CarswellBC 823,28 B.C.L.R. (2d) 205, [1984] S.C.J. No. 40, 1984 CarswellBC 2518(S.C.C.) — referred to

R. v. Burke (1996), 194 N.R. 247, 46 C.R. (4th) 195, 105 C.C.C. (3d) 205,[1996] 1 S.C.R. 474, (sub nom. R. v. Burke (No. 3)) 139 Nfld. & P.E.I.R.147, (sub nom. R. v. Burke (No. 3)) 433 A.P.R. 147, 1996 CarswellNfld 85,1996 CarswellNfld 85F, [1996] S.C.J. No. 27, EYB 1996-67343 (S.C.C.) —referred to

R. v. D. (B.) (2011), 2011 ONCA 51, 2011 CarswellOnt 195, [2011] O.J. No.198, 266 C.C.C. (3d) 197, 273 O.A.C. 241, 226 C.R.R. (2d) 92 (Ont.C.A.) — considered

R. v. Mahmood (2011), 2011 ONCA 693, 2011 CarswellOnt 12654, [2011] O.J.No. 4943, 107 O.R. (3d) 641, 284 O.A.C. 94, 90 C.R. (6th) 323, 246 C.R.R.(2d) 116, 282 C.C.C. (3d) 314 (Ont. C.A.) — referred to


R. v. O’Connor (1995), 100 C.C.C. (3d) 285, 25 O.R. (3d) 19, 84 O.A.C. 113,1995 CarswellOnt 1229, [1995] O.J. No. 2131 (Ont. C.A.) — referred to

R. v. Shearing (2002), 2002 SCC 58, 2002 CarswellBC 1661, 2002 CarswellBC1662, 2 B.C.L.R. (4th) 201, [2002] 8 W.W.R. 395, 165 C.C.C. (3d) 225, 214D.L.R. (4th) 215, 2 C.R. (6th) 213, 290 N.R. 225, 168 B.C.A.C. 161, 275W.A.C. 161, [2002] S.C.J. No. 59, [2002] 3 S.C.R. 33, REJB 2002-32429(S.C.C.) — considered

R. v. Stirling (2008), 2008 SCC 10, 2008 CarswellBC 506, 2008 CarswellBC507, 54 C.R. (6th) 228, 229 C.C.C. (3d) 257, 59 M.V.R. (5th) 1, 77 B.C.L.R.(4th) 1, 371 N.R. 384, [2008] S.C.J. No. 10, [2008] 5 W.W.R. 579, 291D.L.R. (4th) 1, [2008] 1 S.C.R. 272, 251 B.C.A.C. 62, 420 W.A.C. 62(S.C.C.) — referred to

R. v. W. (D.) (1991), 3 C.R. (4th) 302, 63 C.C.C. (3d) 397, 122 N.R. 277, 46O.A.C. 352, [1991] 1 S.C.R. 742, 1991 CarswellOnt 80, 1991 CarswellOnt1015, [1991] S.C.J. No. 26, EYB 1991-67602 (S.C.C.) — followed


rule against oath-helping

As a general rule, a party may not introduce a prior consistent statement. This issometimes called the rule against oath-helping.

APPEAL by accused from conviction for driving with excessive alcohol.

Darren Hogan, for CrownMark Halfyard, for Appellant

R.F. Goldstein J.:

1 During the early morning hours of February 17 2013 a tow truckdriver found Hasti Almasi, the Appellant, in the front passenger seat ofher car. The car had slid off the road and was in a snowbank on thesidewalk. Ms. Almasi had called for the tow truck. The driver thoughtshe might have been drunk. Indeed, she was. He called the police. Whenshe was arrested she told the police one version of events, admitting shewas drunk and had driven the car into a snowbank. She told another ver-sion of events at trial. She testified that in fact a guy that she met at anightclub that night had been driving. The guy’s name was Alex. Herfriend Anna Ianovskaya, who had been with her, also testified that Alexhad been driving — although she had been dropped off at her housebefore the car slid into the snowbank. Ms. Almasi testified that Alex haddisappeared to get help and not returned. She said she had been scared totell the police about Alex, because her very conservative mother would

R. v. Almasi R.F. Goldstein J. 165

have been extremely unhappy about her being alone in a car with a manshe didn’t know.

2 The trial judge, Brewer J., did not believe Ms. Almasi’s evidenceabout Alex. She found Ms. Almasi guilty of “over 80”. Regrettably, thetrial judge erred in her analysis of the defence evidence. There must be anew trial. For the reasons that follow, the appeal is allowed.

Facts:3 February 16 2013 was a Saturday night and Ms. Almasi, the appel-

lant, was at the Luxy Nightclub with her friend Ms. Ianovskaia. Luxy islocated in the north of the City of Toronto at Weston Road and Highway7. Ms. Almasi drove there, picking Ms. Ianovskaia along the way. Theyarrived at around 11 pm. They met up with their friend Michelle Espanathere.

4 Ms. Almasi testified that at the club she saw her ex-boyfriend,Nicholas Penart. Mr. Penart worked at Luxy as a D.J. It was the first timeshe had seen him since they broke up, roughly a month earlier. She had afew drinks and started flirting and dancing with a guy named Alex,knowing it would bother Mr. Penart. Indeed, it did. Mr. Penart was upsetand confronted her.

5 Ms. Ianovskaia also testified that Ms. Almasi was speaking to Alex,and that she introduced him and his friends to her. She testified that Ms.Almasi was flirting with Alex, and that this attracted Mr. Penart’sattention.

6 Mr. Penart testified that he was working as a DJ/entertainer at Luxyon the night of February 16 2013. He saw Ms. Almasi enter the club butcontinued with his job of playing music. Their romantic relationship hadended about a month before. They had been together for about a year anda half. He saw that throughout the night she had been with a man. Hewent up to her and asked about him but she walked off without speakingto him and went in the direction of the bathroom.

7 Ms. Almasi testified that after Mr. Penart confronted her she wasemotional and drunk. She ran to the bathroom. Crying, she told her twofriends that she wanted to leave. There was just one problem: she hadbeen drinking. Her original plan had been not to drink but, she testified,once she saw Mr. Penart she started drinking. She wasn’t sure how muchshe had to drink, but she knew she was unable to drive. She wasn’t surehow she was going to get herself and Ms. Ianovskaia home.


8 Ms. Ianovskaia testified that it would not have been a problem to finda lift home if Ms. Almasi started to drink:

Q. Okay. So, um, as soon as you see her with that first drink inher hand, you know the plan is changing....

A. Right.

Q. ... right? Uh, don’t you say anything to her like “I thought youwere drivin’ me home. Nico’s not gonna drive us. What’s theplan?...”?

A. Un, again, no, because we have friends that were at the club,like, not very close friends, but, people that we knew, and, ingeneral, that’s her decision to make. In our friendship, whenthat — our dynamic is like that. I wouldn’t be the one to tellher what to do.

9 Alex, however, had not been drinking. Ms. Almasi testified that hehad told her he was the designated driver for his friends. He offered todrive the two young women home in Ms. Almasi’s car. They left ataround 2:00 am (it was now February 17) without saying goodbye to Ms.Espana. They dropped Ms. Ianovskaia off first and then continued on toMs. Almasi’s house.

10 Ms. Almasi explained that the reason she left with Alex was partlybecause she was angry about Mr. Penart, and partly because Alex made itso convenient for her — he was able to drive her car home without risk.

11 In cross-examination Ms. Almasi testified that she did not get a“creepy guy vibe” from Alex. She did not explicitly discuss the plan ofletting Alex drive her home with Ms. Ianovskaia because she assumedthat her friend would understand. Indeed, Ms. Ianovskaia testified that inthe dynamics of their friendship she would not have stopped her friendfrom leaving with a guy.

12 Ms. Almasi testified that the car did not have snow tires. It was hermother’s car. She testified that Alex was driving slowly approaching acurb on Cresthaven Drive in Toronto when another car behind themhonked. Alex sped up. The car slid off the road. It came to rest in asnowbank on the sidewalk. Alex could not get the car out. They werestuck. He left to go get help. She figured that Alex had walked down thestreet to a main intersection, but after 20 minutes she realized that per-haps she had better do something. She called a tow truck. She assumedthat by the time a tow truck appeared Alex would have re-appeared andcould continue driving.


13 A tow truck driver showed up. Alex did not. The tow truck drivertestified that he was dispatched to the scene within two or three minutesof receiving the call. He got there within 15 minutes. Ms. Almasi wasseated in the passenger seat and that the car was running. He believed shehad been drinking and was intoxicated. He told his dispatcher to call thepolice.

14 The driver said that Ms. Almasi needed to pay with a credit card. Shedidn’t have one, so she called her friend Ms. Espana, assuming that Ms.Espana could pay and she could pay her back. Ms. Espana showed up afew minutes later with Mr. Penart, the ex-boyfriend, and Andre, one ofhis friends. Mr. Penart unsuccessfully tried to get the car out of the snow-bank. Eventually the tow truck driver towed it to the impound lot.

15 The police arrived at 3:50 am. Officer Rutkowski testified that whenhe got there Ms. Almasi’s car was resting on the curb running with thelights on but nobody in the car. Ms. Almasi was in Ms. Espana’s car withMr. Penart and Mr. Penart’s friend by then.

16 Officer Rutkowski observed that there was an odour of alcohol com-ing from Ms. Almasi. Her eyes were red and puffy. He demanded abreath sample for the roadside screening device. She failed. He then ar-rested her and took her to the police station. She provided two samples ofher breath. The breath room was recorded. Ms. Almasi told the breathtech officer, that she had been “driving very slowly, someone honked,she gassed the car and went up onto the curb.” In other words, she didnot tell the breath tech officer that someone else had been driving the car.

17 At her trial, Ms. Almasi testified that she did not immediately realizethat she being investigated for drinking and driving when the police ar-rived. She thought it was illegal simply to be drunk in a car. She said thatshe did not turn the car on because she was afraid to touch anythingwhile intoxicated.

18 Ms. Almasi explained in her evidence why she told the breath techofficer that she had been driving. She said that it was her first time leav-ing a club with someone she just met and she felt bad about it and regret-ted the situation. She also said:

And I felt, like I was honestly, I was just really scared of my mom... Iwas just the, the most scared of her and her finding out that I had leftthe club with a guy that I had gotten myself into that situation.

19 She also testified: ... I was most scared of my mom and then the police second, but Ijust didn’t want her to know that I left the club with someone and


that was, my whole motive was just for her not to know that I letsomeone drive her car after all of her advice not to go out.

20 In cross-examination she further testified (I set out excerpts): Q. ... all he was doing was giving you a ride home because you’d

had something to drink, right?

A. Yes.

Q. Perfectly appropriate and, and reasonable right?

A. Not by my family’s standards, no.

. . .

Q. ... how is that worse than getting charged with a crime andbeing picked up at a police station?

A. Because I had driven the car and because I had gone out eventhough she hadn’t told me, in, in her books and in our, likeour cultural tradition, I had to take responsibility for what hadhappened... like there’s no such thing as a platonic ride homefrom a friend. Just any guy coming into my car, to her, is theworst thing in the world. Like its something that’s just terribleto, and at that time I, I was like I said much more scared ofher thinking that than me being charged with something Itook responsibility for as opposed I just let this guy, like, it’sjust so much worse...

21 Ms. Ianovskaiaalso testified about the cultural and religious atmos-phere in Ms. Almasi’s household. She and Ms. Almasi had been friendssince elementary school. She described Ms. Almasi’s mother:

Uh, I know her mother’s very strict. She’s Muslim. Um, her brotherand his friends (ph) who don’t live in the house, but, I know that hermom’s very, like, spiritual and religious...

22 Crown counsel also cross-examined Ms. Ianovskaia about Alex.Crown counsel suggested that nobody knew anything about Alex, and (togreatly simplify) that if Ms. Ianovskaia was looking out for her friendshe would not have permitted Ms. Almasi to go home with him. Ms.Ianovskaia firmly disagreed with the suggestion (I set out excerpts):

Q. Okay, did it cross your mind, “I don’t know this guy, I don’twanna be in a car with him, if I’ve got friends who can driveme instead...”?

A. No, because, first of all, Hasti seemed like she wanted toleave with him, so, I wasn’t going to say no to that...

. . .


Q. Okay. Weren’t you worried about your, this, by that time,she’s had a few drinks, she’s not perfectly sober, right?

A. Right.

Q. And she’s very emotional, right?

A. She was emotional towards Nico, yes.

Q. Yeah. She’s emotional. And, so, uh, she’s somewhat drunk,and very emotional, and I’m gonna suggest that makes a per-son a little bit vulnerable, wouldn’t you agree?

A. It could.

Q. Right. Generally speaking, a drunk, emotional person, is morevulnerable than a sober and calm person, right?

A. Yes.

Q. Okay. And as we agreed at the beginning, one of the firstrules of friendship is you have somebody’s back, right?

A. Right.

Q. Okay. So, wouldn’t you have expressed to her the concernthat she was gonna be alone in a car, a little bit drunk andemotional, with some guy she really didn’t know who couldbe anybody?

A. When we talked about it in the bathroom, she wanted to gohome with him, so...

. . .

Q. Okay. So you’re a, an educated, intelligent woman, and, I’mgonna suggest to you, that it’s obvious that there are somethings to be worried about, if this total stranger is gonna bealone in the car with your friend who’s vulnerable and youhad to talk to her about it, wouldn’t you?

A. To be honest? I wouldn’t tell her not to go home with a guy ifshe wanted to go home with a guy. That’s not in the dynamicsof our friendship.

. . .

A. No, because I didn’t feel it as a dangerous situation, at thetime, so, I couldn’t advise her. I wouldn’t ask her “Are yousure, it seems dangerous” because I didn’t feel it was danger-ous at the time. Like, there wasn’t a sense of danger that I gotfrom the guy that I would, I was tryin’ to warn her about.

23 Mr. Penart testified that later in the evening (or early morning), afterhe spoke to Ms. Almasi, Ms. Espana called him. Ms. Almasi was introuble. He and Ms. Espana drove to the location where Ms. Almasi’s car


was stuck in the snowbank. She was in the car but it was not turned on.He took her out and put her in Ms. Espana’s car, as it was a very coldnight.

24 Ms. Almasi testified that she went back to Luxy and asked aroundabout Alex. She had given him her number but did not otherwise have away to contact him.

Trial and Reasons of the Trial Judge25 The trial was a simple one. The tow truck driver and Constable

Rutkowski testified for the Crown. Ms. Almasi, Ms. Ianovskaya and Mr.Penart testified for the defence. The video from the breath room wasplayed. It was agreed that:

• Ms. Almasi failed the roadside screening device demand;

• Ms. Almasi provided two breath samples at 5:51 am and 6:16 am.The samples showed that she had a blood alcohol content of 167and 154 mg of alcohol per 100 ml of blood, respectively;

• The toxicologist extrapolated from those readings that Ms. Al-masi’s blood alcohol content would have been between 155 and205 mg of alcohol per 100 ml of blood at 3:27 am, the time of theaccident;

• Ms. Almasi would have been above the legal limit at the time ofthe accident.

26 The defence also conceded that the statements made by Ms. Almasito the breath technician and caught on video were voluntary and admissi-ble. The truth of the statements was not conceded. Ms. Almasi, Ms. Ia-novskala, and Mr. Penart testified for the defence.

27 The trial judge identified the sole issue as whether Ms. Almasi wasthe driver of the car. She reviewed the evidence in detail. In her analysisshe instructed herself as to the principles in R. v. W. (D.), [1991] 1 S.C.R.742 (S.C.C.). As Mr. Halfyard concedes, the trial judge properly identi-fied the principles and set them out.

28 The trial judge found that she did not believe the defence evidence,and that it did not raise a reasonable doubt. She was prepared to acceptthat there was a man called Alex at Luxy and that Ms. Almasi was flirt-ing with him. She rejected the defence evidence and found that it did notraise a reasonable doubt in her mind. These were some of her keyreasons:


• The trial judge found it unlikely that Ms. Almasi and Ms. Ianov-skaia would allow a complete stranger to drive them home in Ms.Almasi’s mother’s car, especially knowing her mother’s opposi-tion to having a man in the car and her disapproval of her drivingthat night;

• Although both Ms. Almasi and Ms. Ianovskaia testified that Alexwas the designated driver for his friends, the trial judge found itunusual that he would abandon his companions to let them maketheir own way home;

• Ms. Almasi told the Court and the police completely different sto-ries about who was driving the car;

• The trial judge found it implausible that Ms. Almasi’s motherwould be more upset by the fact that she had a man in the car thanher being charged with a criminal offence;

• Ms. Almasi’s account of Alex abandoning her seemed contrived;and,

• The trial judge found Ms. Ianovskala’s lack of concern for herfriend’s safety “surprising”.

29 The trial judge also noted that Ms. Almasi and Ms. Ianovskaia hadample opportunity to collude, although she did not go further and findthat there was actual collusion.

Analysis30 The trial revolved primarily around credibility. There was no question

that Ms. Almasi was impaired, that she was properly arrested, and thatshe said incriminating things to the police. The real issue was whetherher evidence about Alex at trial was true, or at least raised a reasonabledoubt. If the trial judge had believed Ms. Almasi, or found that the evi-dence left her in a state of reasonable doubt, she undoubtedly would haveacquitted.

31 Mr. Halfyard, on behalf of Ms. Almasi, argues that the trial judgemade three errors. First, he argues that the trial judge erred by misapply-ing the test in W.D. Second, He argues that the trial judge erred by notpermitting evidence to rebut an allegation of recent fabrication; and third,he argues that the trial judge erred in her treatment of the allegedcollusion.

32 I will deal with each of these issues in turn.


(a) Did the trial judge misapply the test in R. v. W.(D.)?33 This was a difficult case for the defence. It rested on Ms. Almasi’s

credibility. Unfortunately for her, she had either lied to the police whenshe said she was driving, or lied to the Court about lying to the police. Itwas certainly open to the trial judge to reject her testimony. There can beno doubt that the trial judge’s findings about Ms. Almasi were open toher on the evidence.

34 The problem is that the trial judge dealt with the evidence of Ms.Almasi and Ms. Ianovskaia together, but only made an adverse credibil-ity finding in relation to Ms. Almasi. In my respectful view the trialjudge was required to assess the evidence of Ms. Ianovskaia separatelyfrom Ms. Almasi. Ms. Ianovskaia’s evidence corroborated Ms. Almasi’sevidence. If believed, or at least if the trial judge found that it might bereasonably true, it was capable of raising a reasonable doubt aboutwhether or not Ms. Almasi was the driver of the car. The trial judge didnot evaluate Ms. Ianovskaia’s credibility at all.

35 In R. v. D. (B.), 2011 ONCA 51, 266 C.C.C. (3d) 197 (Ont. C.A.) theaccused was charged with incest, forgery, and uttering forged documents.She had three children with an older child and then used false documentsto try to demonstrate that the older child was in fact her husband and adifferent person. As Blair J.A. said in his reasons, the case gave “newmeaning to the word bizarre”. It is not required to repeat the tangled evi-dence in that case, but suffice it to say that there was defence evidence(not from the accused herself) that, if believed, was capable of castingdoubt upon the identity of the child/husband of the accused. The trialjudge did not explain to the jury how they were to deal with conflictingevidence, as Blair J.A. noted:

What I take from a review of all of these authorities is that the princi-ples underlying W.(D.) are not confined merely to cases where anaccused testifies and his or her evidence conflicts with that of Crownwitnesses. They have a broader sweep. Where, on a vital issue, thereare credibility findings to be made between conflicting evidencecalled by the defence or arising out of evidence favourable to thedefence in the Crown’s case, the trial judge must relate the conceptof reasonable doubt to those credibility findings. The trial judge mustdo so in a way that makes it clear to the jurors that it is not necessaryfor them to believe the defence evidence on that vital issue; rather, itis sufficient if — viewed in the context of all of the evidence — theconflicting evidence leaves them in a state of reasonable doubt as to


the accused’s guilt: R. v. Challice (1979), 45 C.C.C. (2d) 546(Ont.C.A.). In that event, they must acquit.

36 That principle applies to this case. The trial judge was required toevaluate Ms. Ianovskala’s evidence separate from Ms. Almasi’s. Thiswas because she could have disbelieved Ms. Almasi that “Alex” wasdriving but believed Ms. Ianovskaia or found that Ms. Ianovskaia’s evi-dence left her in a state of reasonable doubt. The trial judge was notobliged to come to that conclusion. But because it was capable of leadingto an acquittal, she was required to at least deal with it. It was an impor-tant evidentiary point.

37 The principle also applies to the evidence that Ms. Almasi’s motherwould have been more upset about Ms. Almasi being alone in a car witha strange man than about her encounter with the police. The trial judgefound that Ms. Almasi’s evidence on that point was implausible. Thatfinding was open to her, but the trial judge did not deal with the fact thatMs. Ianovskaia, who was cross-examined on the point, corroborated thatevidence as well. That was an important piece of evidence because, ifaccepted, it explained why Ms. Almasi lied to the police (if she was ly-ing) when she initially told them that she was alone in the car. Again, thetrial judge was not obliged to accept that evidence but she was requiredto consider it.

38 Finally, there was some element at speculation in the trial judge’sfindings. The trial judge found that it was unlikely that Ms. Almasi andMs. Ianovskaia would allow a stranger to drive them home. She alsofound it surprising that Ms. Ianovskaia was unconcerned about herfriend’s safety — although Ms. Ianovskaia clearly was. She was con-cerned that Ms. Almasi could not drive, and implicitly considered that abigger danger than the danger of having a man she had just met drivethem home. The trial judge also found it implausible that “Alex” wouldabandon his friends in order to drive Ms. Ianovskaia and Ms. Almasihome.

39 With great respect, there seems nothing at all implausible about ayoung man abandoning his friends to drive home two young women, oneof whom had been flirting and dancing with him. More importantly, bothyoung women provided explanations for permitting Alex in the car.Again, the trial judge was required to evaluate their credibility separatelyon that point in terms of whether the evidence was capable of leaving herin a state of reasonable doubt. Ms. Ianovskaia and Ms. Almasi were uni-versity-educated young women who testified (in essence) that they were


capable of making their own decisions for themselves. The trial judgecould have accepted or rejected their individual evidence but it was anerror to speculate about how they “should” or “would” have behaved inthat situation.

(b) Did the trial err by refusing to permit evidence to rebut anallegation of recent fabrication?

40 As a general rule, a party may not introduce a prior consistent state-ment. This is sometimes called the rule against oath-helping. Such state-ments are generally excluded because they tend to be self-serving andtherefore have little or no probative value: R. v. Stirling, [2008] 1 S.C.R.272 (S.C.C.) at para. 5. A prior consistent statement may, however, beadmitted to rebut an allegation of recent fabrication: Sterling, at para. 7.The prior statement may not be admitted for the truth of its contents, butrather to show that the witness had made a consistent statement on anearlier occasion. The consistent statement must have been made prior theallegation that testimony was concocted. The statement is only admissi-ble for the purpose of rehabilitating the witness. In other words, the priorconsistent statement can only go credibility: R. v. O’Connor (1995), 100C.C.C. (3d) 285 (Ont. C.A.).

41 Mr. Halfyard points to two prior consistent statements — one to Ms.Ianovskaia and one to Mr. Penart-that should have been admitted.

42 Ms. Ianovskaia testified that after Ms. Almasi and Alex dropped heroff she went to sleep and put her phone in silent mode. She woke up tofind text messages from Ms. Almasi and Ms. Espana. She started to ex-plain them when the following exchange took place:

Q. Stating what?

A. So, Hasti told me that they had slid into a snow bank near herhome...

Q. Okay.

A. ... and that, uh, they were stuck, they tried to...

MR. ALEXANDER (Crown counsel): You’re Honour, that’s...

MR. DI CARLO (Defense counsel): Sorry. Go on

MR. Alexander: This is just evidence of prior consistent statements.

THE COURT: Yeah.

MR. DI CARLO: yeah, yeah.

43 When Mr. Penart testified he said that Ms. Espana went to the policestation with him. They waited for Ms. Almasi was until she was released


at about 8:00 am. Mr. Panart started to testify that Ms. Almasi told himthat Alex had been driving but that testimony was cut short by an objec-tion. The trial judge did not say anything and defence counsel simplymoved to another question.

44 In this case there is no doubt that Crown counsel alleged that Ms.Almasi’s story was fabricated to meet the exigencies of the evidence.That is a classic example of an allegation of recent fabrication. Without adoubt, the defence should have been permitted to admit a prior consistentstatement to rebut the allegation. Ironically, it is typically the Crown thatseeks to introduce a prior consistent statement.

45 It is, however, not possible to find that the trial judge made an error.There was no argument and no requirement for Her Honour to make aruling. The problem was the alacrity with which defence counsel backedaway from introducing the statements. Indeed, Mr. Halfyard was verycareful to indicate that he was not critical of the trial judge on this point.I do agree with Mr. Halfyard that had the defence been permitted to callthe prior consistent statements, it might have had an important impact onMs. Almasi’s credibility. It is unfortunate that this did not happen so thatthe credibility of the witnesses could be properly assessed.

46 That said, ultimately I find that the failure of defence counsel pre-cludes raising this issue on appeal for the first time: Perka v. R., [1984] 2S.C.R. 232 (S.C.C.); R. v. Mahmood, 2011 ONCA 693, 107 O.R. (3d)641 (Ont. C.A.). There is an insufficient factual record on which to eval-uate the issue. Had the question been asked and the issue put to the trialjudge after argument on the point, there would be a basis upon which anappellate court could intervene — or not. Accordingly, I will not order anew trial on this ground.

(c) Did the trial judge err in her treatment of the alleged collusion?47 The trial judge noted in her reasons that:

Ms. Ianovskaia (Ms. Ianovskala) is the defendant’s best friend andthe two women had ample opportunity to collude.

48 Mr. Halfyard argued that the trial judge was required to actually makea finding of collusion, rather than merely point out that Ms. Ianovskaiaand Ms. Almasi had the opportunity to collude. He argues that the trialjudge needed to actually consider the possibility that they had actuallycolluded: R. v. Burke, [1996] 1 S.C.R. 474 (S.C.C.) at para. 45. To thecontrary, Mr. Hogan, for the Crown, relies on R. v. Shearing, [2002] 3S.C.R. 33 (S.C.C.).


49 It is certainly debatable as to whether the law is so clear-cut that inevery case a trial judge needs to go so far as to actually make a finding ofcollusion, rather than a finding that the witnesses had the opportunity tocollude. As I have noted, the trial judge did not evaluate Ms. Ianov-skaia’s credibility separately from Ms. Almasi’s. If Ms. Almasi was ly-ing, then by implication Ms. Ianovskaia must also have been lying. Byfurther implication, if they were lying, then they must have colludedsince their stories matched, at least on the major points. I agree with Mr.Halfyard that in the circumstances of this case an actual finding of collu-sion was required, because they were either both lying or neither waslying.

50 In my respectful view, this error, which was related to the W.D. error,also requires a new trial.

Disposition:51 I agree with Mr. Halfyard’s position that there was certainly evidence

upon which a trial judge could have convicted Ms. Almasi. Under thecircumstances, a new trial is ordered.

Appeal allowed; new trial ordered.