R v Vanderheide, 2011 ABQB 468

Court of Queen ’ s Bench of Alberta Citation: R v Vanderheide, 2011 ABQB 468 Date: 20110718 Docket: 090784315S1 Registry: Edmonton Between: Her Majesty the Queen Respondent - and - Walter Charles Vanderheide Appellant _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice D.L. Shelley _______________________________________________________ [ 1 ] The parties agree that the facts are as stated in Mr.

Vanderheide’s written memorandum, filed in connection with this appeal, which I summarize as follows: On June 3, 2009, RCMP Constable Allan Foster was advised by dispatch of a complaint that a truck was parked in the middle of the road at the intersection of Range Road 275 and Township Road 505, in Stony Plain. A license plate number was provided to him. He attended at the location, but initially did not locate the vehicle.

He noticed a vehicle approaching from behind, also travelling westbound, and he turned his vehicle around and parked his marked police cruiser facing eastbound on the west side of the intersection. The other vehicle stopped at the intersection for approximately twenty seconds, turned northbound on Range Road 275 at high speed, spitting up dust and

gravel when doing so. Constable Foster got the license plate number from the vehicle and it matched the plate number that had been called into dispatch. Constable Foster observed the vehicle drive in and out of the ditches at a high rate of speed, almost flipping on one occasion. He noted on his speedometer that he reached speeds estimating 150 km per hour. Constable Foster did not initiate a pursuit of the vehicle or activate his emergency equipment, as he feared that the driver would escalate his dangerous driving in order to flee the police and end up killing himself or a member of the public.

Constable Foster instead continued to follow the vehicle at a distance for a total of ten minutes while calling backup into the area. The vehicle eventually stopped, after almost crashing and flipping a number of times. Prior to stopping, it slowed down to 20 km per hour for almost a kilometre, which Constable Foster considered to be very unusual, particularly since Constable Foster did not have his emergency equipment on and was still a safe distance away. Constable Foster was fearful that the driver was preparing to flee or was accessing a weapon.

Constable Foster then activated his emergency equipment, closed the distance between him and the vehicle and executed a high risk takedown. Mr. Vanderheide was the sole occupant of the vehicle and was taken into custody. Prior to this incident, Mr. Vanderheide had intended to meet an acquaintance, Dex, in order to purchase diesel fuel from him. He was unfamiliar with the location where he was to meet Dex, who was unreachable by cell phone since he was camping in the river valley. Mr. Vanderheide, after stopping at a stop sign, saw a vehicle coming from behind him.

The roads were freshly graded and the vehicle continued to follow him as he drove for four country blocks. He denies that he ever went in the ditch or that he ever exceeded 80 km per hour, which he believed was the speed limit. His truck ran out of gas and coasted to a stop. At that time the vehicle following him activated police lights and he was arrested. [ 2 ] Mr. Vanderheide was charged with dangerous driving. A trial was held on April 27, 2010. There were two witnesses, Constable Foster and Mr. Vanderheide. They gave the evidence which is summarized above. Mr. Vanderheide was convicted.

He now appeals that conviction. Grounds set out in the Notice of Appeal [ 3 ] In his Notice of Appeal, Mr. Vanderheide provided a number of grounds for his appeal, including his assertion that “the evidence given by the RCMP was fabricated”, that the court was “byast” (sic), and that “the officer was vendictive (sic) and slanderous”. Position of Mr. Vanderheide [ 4 ] Mr. Vanderheide argues that the Trial Judge made two errors of law: a. He failed to give meaningful reasons or reasons that would allow a person to follow his thought processes; and b.

The conviction was unreasonable and not supported by the evidence. [ 5 ] In relation to the first ground of appeal, Mr. Vanderheide argues that the only reason given by the Trial Judge for his decision to convict was that Mr. Vanderheide testified that he never went over 80 km per hour. [ 6 ] Mr. Vanderheide also points to portions of Constable Foster’s evidence which he argues ought to have raised credibility concerns in relation to that evidence. For example, he suggests that Constable Foster failed to answer several questions put to him on cross-examination.

He points out that Constable Foster’s belief that there was a considerable amount of fuel in the two tidy tanks and fuel jerry cans located in Mr. Vanderheide’s vehicle conflicted with Mr. Vanderheide’s evidence in relation to that matter. He suggests that Constable Foster’s evidence that he was able to see Mr. Vanderheide’s license plate conflicts with his evidence that, as the Vanderheide vehicle pulled away quickly, it stirred up a cloud of dust and gravel which would have made it difficult or impossible to see the license plate. Mr.

Vanderheide also argues that Constable Foster’s evidence that he travelled at speeds in excess of 150 km/hour

down a gravel road in a police car should have caused the Trial Judge to question Constable’s Foster’s truthfulness, suggesting that theroad conditions would have made this speed impossible and that this should have been obvious to the Trial Judge. [7] Mr. Vanderheide submits that the Trial Judge failed to address why he accepted the evidence of Constable Foster over hisevidence and did not give any reasons why he rejected Mr. Vanderheide’s evidence. Mr.

Vanderheide further submits that, where thereis conflicting evidence, which is the case here, the Trial Judge had an obligation to explain why he preferred Constable Foster’s evidenceover his own. He relies on the Supreme Court of Canada decision in R. v. Shepard, 2002 SCC 26, which sets out, at para. 55, a numberof comments concerning a Trial Judge’s obligation in relation to providing reasons to a convicted person. [8] On the second ground, Mr. Vanderheide argues that, when viewed objectively, Constable Foster’s testimony is not capableof belief beyond a reasonable doubt. Mr.

Vanderheide argues that, because the Trial Judge did not resolve contradictory evidence on keyissues, the evidence of the witnesses is not capable of belief beyond a reasonable doubt and therefore the Crown has failed to meet itsburden of proof. [9] In the result, Mr. Vanderheide argues that an acquittal be entered or a new trial ordered. Position of the Crown [10] The Crown points to the cases of R. v. Yebes (SCC), [1987] 2 SCR 168, R. v. Burns (SCC),[1994] 1 SCR 656, Housen v. Nikolaisen 2002 SCC 33 , [2002] 2 SCR 235, and others which have commented on the issue ofunreasonable verdict.

It points out that, in determining whether a verdict is reasonable, an appeal court may only weigh, re-weigh and re-examine evidence for the purpose of determining if it is reasonably capable of supporting a trial judge’s conclusion; that findings of factand factual inferences must not be interfered with unless there is a palpable and overriding error; and that the failure of a trial judge torecord reasons for each finding is not a basis for inferring that the trial judge erred. [11] The Crown agrees with Mr.

Vanderheide that the standard of review for questions of law is correctness but that, even if anerror of law is demonstrated, an appeal court may nonetheless dismiss an appeal if:

a) the error is harmless and there is no reasonable possibility that the verdict would have been different had the error not been made,or

b) the error is serious, but the evidence is so overwhelming that any verdict other than a conviction would be impossible. See s. 686(1)(b)(iii) of the Criminal Code and R. v Khan, 2001 SCC 86, [2001] 3SCR 823 at paras. 23, 28 and 31). [12] The Crown argues that the Trial Judge was aware of, and understood the nature of, the arguments being made by Mr.Vanderheide. The Trial Judge had before him conflicting evidence from Constable Foster and Mr. Vanderheide and that evidence wascanvassed fully, with both the Crown and Mr.

Vanderheide being represented by counsel and having the chance to extensively cross-examine both witnesses. [13] The Crown points out that, because Mr. Vanderheide gave evidence, the principles in R. v. W.(D.) apply. The Crown submitsthat the Trial Judge applied the principles in R. v. W.(D.), making it clear that he did not accept Mr. Vanderheide’s evidence and that itdid not raise a reasonable doubt in his mind.

The Crown argues that the only other evidence before the Court, that of Constable Foster,was accepted by the Trial Judge and that, on the basis of that evidence, the Trial Judge properly concluded that the charge had beenproven. [14] Therefore, the Crown submits that the verdict was reasonable and was supported by the evidence, and that the reasonsprovided were sufficiently intelligible to permit appellate review. In the result, the Crown argues that the appeal ought to be dismissed.

Decision and Reasons [ 15 ] The transcript of the proceedings, and in particular the Reasons for Judgment of the Trial Judge, make it clear that the Trial Judge was not only aware of the analysis required under R. v. W.(D.) , but that he conducted that analysis. [ 16 ] The Trial Judge was clear that he did not accept Mr. Vanderheide’s evidence. He said so several times. Similarly, he expressly stated that Mr. Vanderheide’s evidence did not raise a reasonable doubt in his mind.

On the third branch of the test, he addressed whether he was left in reasonable doubt based on the entirety of the evidence and stated unequivocally that there was no reasonable doubt in his mind that Mr. Vanderheide was going at speeds well in excess of the speed limit, that he did swerve, and that he did drive in a dangerous manner. [ 17 ] While the issues raised are questions of law, at the core of the analysis is the Trial Judge’s assessment of the credibility of two witnesses whose testimony differed significantly on material issues. The Trial Judge was in the best position to assess credibility.

A trial judge's credibility findings should not be disturbed lightly: R. v. Gagnon , 2006 SCC 17 , [2006] 1 S.C.R. 621 (at paras. 22-23 ); R. v. R.E.M. , 2008 SCC 51 , [2008] 3 S.C.R. 3 (at paras. 64-65 ). The Trial Judge was aware of and applied the correct law in relation to that credibility assessment. He clearly rejected Mr. Vanderheide’s evidence and accepted Constable Foster’s.

Having accepted Constable Foster’s evidence, the evidence that he did accept supports the conviction. [ 18 ] While the Trial Judge's reasons could have been both more fulsome and clear, the Trial Judge made it clear that he could not accept Mr. Vanderheide's explanation for his speed. Although he does not state this in his reasons, his reasons must be reviewed in the context of the whole trial: R. v. Laboucan, 2010 SCC 12 , [2010] 1 S.C.R. 397 (at paras. 16-17 ); R.E.M. (at para. 18 and para. 57) .

In relation to the speed issue, Constable Foster provided, both in direct examination and on cross-examination, a detailed explanation as to his checking of his speedometer and his modifications to his own driving pattern in light of the dangerous conditions. There was no evidence before the Trial Judge concerning the ability of a vehicle (whether Constable Foster's police vehicle or Mr. Vanderheide's truck) to remain on a country gravel road at speeds of up to 150 km/hour. I agree with the Crown that it was incumbent upon Mr. Vanderheide to lead evidence at trial if this was a foundation of his defence.

The Trial Judge's acceptance of Constable Foster's evidence in relation to Mr. Vanderheide's speed would be, without more, sufficient, given the circumstances, to support a conviction for dangerous driving. [ 19 ] Although Mr. Vanderheide argues that Constable Foster was mistaken with respect to the amount of fuel in the tanks and jerry cans and that this should call his credibility into question, Constable Foster indicated that he was not certain of the amount of fuel and confirmed that he was not sure about the accuracy of his estimation since no exact measurements were taken. Similarly, Mr.

Vanderheide challenges Constable Foster’s testimony that he was able to view Mr. Vanderheide’s license plate notwithstanding his evidence that Mr. Vanderheide’s vehicle had kicked up a significant amount of dust and gravel when it sped up rapidly. In his direct testimony Constable Foster indicated that he was able to get the license plate number, informed his OCC of the plate number, and had it run, as he was trying to close the distance. The fact that he was able to advise OCC of the plate number and have it run is consistent with his testimony that he was able to read it.

Furthermore, on cross-examination, when challenged on this point, Constable Foster confirmed that he had to pull out behind the Vanderheide vehicle immediately in order to be able to observe the license plate. Although the Trial Judge did not specifically address each of these arguments of Mr. Vanderheide, it was not necessary for him to do so. [ 20 ] I conclude that any lack of detail in the Trial Judge’s Reasons did not render them unintelligible, nor prevent meaningful appellate review.

I also conclude that there were sufficient reasons given by the Trial Judge, particularly when read in the context of the entire proceeding, to support the Trial Judge's credibility findings (which are owed significant deference) and that the evidence of Constable Foster was more than adequate to support a conviction for dangerous driving. [ 21 ] Therefore the appeal is dismissed. Heard on the 23 rd day of June, 2011.

Dated at the City of Edmonton, Alberta this 18 th day of July, 2011. D.L. Shelley J.C.Q.B.A. Appearances: Akram Attia Attia Reeves for the Appellant Scott C. Pittman Alberta Justice for the Respondent