R v Didechko, 2016 ABQB 376

Court of Queen ’ s Bench of Alberta Citation: R v Didechko, 2016 ABQB 376 Date: 20160704 Docket: 130836984Q1 Registry: Edmonton Between: Her Majesty the Queen Crown - and - Kenneth Didechko Accused _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice A.W. Germain _______________________________________________________ A. Introduction [ 1 ] 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: Criminal Code , s 252(1.3); and 4. dangerous operation of a motor vehicle causing death: Criminal Code , 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 obtained through warrants and production orders, including R v Didechko , 2015 ABQB 642 , 27 Alta LR (6th) 290. Upon Justice Schutz’s appointment to the Alberta Court of Appeal, it fell to me to conduct the actual trial. Her pretrial rulings bind me as the trial judge, so there were relatively few admissibility issues that arose during the trial. [ 3 ] At the conclusion of argument Crown counsel indicated that they were not seeking a conviction on Count 2: Criminal Code , s 269. Therefore, this count will not again be mentioned. B.

Background Facts [ 4 ] The background to this case is not greatly in dispute, so to better articulate 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 of 141st Ave. At 3:06 AM she was struck by a 2012 Dodge Charger [the “vehicle”] [Exhibit 3: Agreed Statement of Facts]. This vehicle was owned by an Alberta car dealership, and had been assigned, the evening before, to Mr. Ken Didechko as his demonstration vehicle.

The vehicle was located and identified about nine hours later at 11:30 AM by a civilian and reported to the Edmonton Police Service [“EPS”],[Exhibit 3]. The vehicle had been abandoned off the road, in North East Edmonton on Fort Road near Meridian Street. [ 6 ] Defence has admitted that the vehicle assigned to Mr. Didechko was the vehicle that struck Ms. Jackson. The critical factual issue is therefore whether Mr. Didechko was driving that vehicle when Ms. Jackson was struck. [ 7 ] The actual location of Ms.

Jackson on 82nd St. is also in some controversy, but it appears clear that she was on the driving portion of the curb lane going southbound. What she was doing there and how long she had been there was difficult to determine. Her visible clothing consisted of blue jeans and a lighter ‘hoodie jacket’. Her male companion (not struck) was incapacitated due to alcohol consumption. The vehicle which struck her was moving from north to south.

An eyewitness observed a momentary flash of brake lights, but the vehicle did not otherwise stop. [ 8 ] By coincidence, two members of Edmonton’s Fire Department (also trained in first response medicine) were just finishing a call at the corner of 82nd St. and 141st Ave. Both firefighters heard what they described as a thump, and one firefighter saw Ms. Jackson thrown over the vehicle. These two firefighters raced to Ms. Jackson’s aid and arrived within 20 seconds of the collision. Despite their best effort and the expeditious arrival of a fully equipped ambulance, Ms.

Jackson succumbed to her injuries a short time later at an Edmonton hospital. [ 9 ] At the time of the collision 82nd St. was dry, bare, and in good condition. The vehicle traffic on 82nd St. at that time was light. There were no atmospheric conditions obscuring the road. Although nighttime, the streetlights on 82nd St. were functioning. The two first responders, kneeling on the road assisting Ms.

Jackson were, despite the road and light conditions, cautious about getting struck by oncoming vehicles, so they directed the officer in charge of their fire truck to park it on 82nd St., to provide a protective barricade for them. [ 10 ] It is therefore beyond question and little in dispute that the Crown has proven beyond a reasonable doubt that whoever was driving the Dodge Charger at the time failed to stop and render appropriate assistance as required by the Criminal Code of Canada.

It is beyond doubt that the driver 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 Crown [ 12 ] The Crown asserts that they have proven beyond a reasonable doubt that Mr. Didechko was the driver at the time of the fatal collision. They base this on technological forensic evidence consisting of the global positioning system in the vehicle, the utilized transmission tower locations, and context of various calls and text messages made from Mr. Didechko’s phone.

The Crown emphasizes inconsistencies between this objective evidence, and Mr. Didechko’s claim made to the police that the vehicle was stolen and that the person who stole the vehicle was the driver in the accident. The Crown asks me to reject the defence evidence and come to the only possible conclusion: that Mr. Didechko is guilty beyond a reasonable doubt. [ 13 ] The Crown asserts that they have proven that Mr. Didechko: 1. was driving in a dangerous manner through a combination of speed and alcohol consumption when the accident occurred, 2.

Left the scene of an accident, and falsified a report to the police when he reported the vehicle was stolen. The Crown also points out that even if Mr. Didechko is found to not be driver of the vehicle, his falsehoods proven by comparison to the vehicle global positioning system and the phone records, relating to the theft of the vehicle, prove him guilty beyond a reasonable doubt of the obstruction charge. 2. The Defence [ 14 ] The defence made no specific submission on count one: the obstruction of justice charge, except the reminder to the court that Mr.

Didechko must be proven guilty beyond a reasonable doubt. On the two substantial counts for which learned defence counsel

made extensive submissions, the defence points out that the Crown must prove beyond a reasonable doubt that Mr. Didechko was thedriver of the vehicle before he can be convicted of leaving the scene or dangerous driving; and argues that the Crown has failed to do so.The cell phone tracking is potentially inaccurate, inconclusive and too unreliable to amount to circumstantial evidence.

The statement tothe police in the afternoon following the collision is not a false alibi, nor should it be considered incriminating post-offence conduct asthat statement was not unequivocal. [15] The defence’s fallback position is that no matter who was driving, the evidence of dangerous driving falls short of thecriminal threshold of a deliberate and intentional deviation from the normal standards. There is no evidence of excessive speed, or ofexcessive consumption of alcohol. When one adds to that the fact that Ms.

Jackson was on the driving portion of the road at the time shewas struck and not in an intersection, there can be no finding of dangerous driving. D. Legal Overview [16] Mr. Didechko is entitled to the benefit of the doubt, and he must be acquitted if there is any reasonable doubt whatsoever inthe Crown’s case against him. It is not enough he is likely guilty, or probably guilty.

The Crown must prove him guilty beyond areasonable doubt: R v Lifchus, (SCC), [1997] 3 SCR 320 at paras 30-31, 39, 150 DLR (4th) 733. [17] ‘Proof beyond a reasonable doubt’ is not to a standard of absolute certainty, as that standard is impossibly high. This case ishighly factually driven, and the critical fact about whether Mr. Didechko was driving the vehicle when it hit Faith Jackson must beproven beyond a reasonable doubt. [18] The case is one we identify as a circumstantial evidence case. There is absolute proof of the vehicle which struck Ms.Jackson.

But who was driving at the time is based on circumstantial evidence. Much has been written on circumstantial evidence, but forour purposes, an acceptable overview is found in Sidney Lederman et al, The Law of Evidence in Canada, 4th ed (Markham:LexisNexis, 2014): 2.81 Circumstantial evidence in the criminal context is any circumstance which may or may not tend to implicate the accused in thecommission of the offense for which the accused is charged.

For example, an inference of culpability may be drawn from a“consciousness of guilt” (now referred to as “post-offense conduct”) in the fact that the accused fled from the scene of a crime, ... gave afalse alibi, destroyed evidence, or lied to the police; or that the accused had a motive or opportunity to commit the crime. [19] Circumstantial evidence, at its heart requires that one fact be drawn from a series of other facts and this case is no different.The Crown seeks: 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 inference that the phone was with Mr. Didechko; And third a combination of the phone calls and the GPS coordinates from the vehicle to prove that Mr. Didechko was driving the vehicle when it struck Ms. Jackson. The defence urges me not to convict on thiscircumstantial evidence because it is not inconsistent with any other rational conclusion. [20] Even if the Crown proves that Mr. Didechko was driving the vehicle when Ms.

Jackson was struck, that would make himguilty of the basic charge of hit-and-run, but before he can be convicted of ‘hit and run when death occurred’, as described in thisindictment, the Crown must also 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 willfully blind 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 thatevidence comes before the court because the Crown introduced in evidence one or more of Mr.

Didechko’s statements to police. In suchcases, the Supreme Court of Canada has directed me in a case called R v W(D), (SCC), [1991] 1 SCR 742, 63 CCC (3d)397 [“W(D)”] that I should conduct a three-part analysis of Mr. Didechko’s statements that he was uninvolved with the collision and Ms.Jackson’s death: 1. If I believe the evidence of the accused and his denial of wrongdoing, he must be acquitted. 2. Even if I do not believe the accused’s evidence denying responsibility, 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 a reasonable 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 simply because they may not believe the person on trial, theyshould not reverse the burden of proof and convict the accused because they do not believe him. The W(

D) procedure also protects theaccused from a ‘credibility competition’ between a Crown witness and the accused. A trier of fact must determine whether the Crownhas proven the case beyond a reasonable doubt. The individual on trial does not have to prove his innocence. This applies to all of thecharges 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 someone else took his vehicle and caused the death of Ms. Jackson. That is his version! The second alternative is that Mr. Didechko was driving his assigned vehicle at the time it struck Ms. Jackson, and then spent the next few hours working out a cover-up. That is the Crown’s theory. F. Factual Analysis [ 24 ] 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 will be based. Many facts are not greatly in dispute, and some were admitted during the course of the trial. Some have already been referred to.

However, it is useful to start with the timeline. This timeline is developed in isolation to the time line created by the GPS [“global positioning system] records (see para 39). 1. Timeline Time Event Notes Saturday, October 13, 2012 6:30 PM to 7:00 PM Approximate time Mr. Didechko leaves the car dealership as the driver of the 2012 Dodge Charger that struck Ms. Jackson. Admitted by Mr. Didechko in voluntary statement of October 14, 2012, line 463. Also by evidence of Mr. Trevor D’Haene from the dealership. 9:30 PM to 10:00 PM Mr. Didechko leaves a south side restaurant, accompanied by his brother, Tom Didechko.

Admitted by Mr. Didechko in voluntary statement of October 14, 2012, line 508. 11:00 PM Approximate time, Mr. Didechko leaves Jox Sports Bar, accompanied by his brother. Mr. Didechko allows his friends to test drive the Charger to their next location. Admitted by Mr. Didechko in voluntary statement of October 14, 2012 combined in lines 1127, 1136, 1254. Also Exhibit 30 identifying the intervening drivers. 10:56 PM Mr. Didechko enters Richard’s Pub , a licensed premise at 121 St. and 161 Ave., NW. Time and video records from the bar, capturing Mr. Didechko’s arrival.

Sunday, October 14, 2012 1:59 AM Last call at Richard’s Pub – Mr. Didechko is still present, but is seen leaving through a side door. Time records from the bar and video capture show Mr. Didechko, leaving the bar. Note: all the time record on the actual bar videos are in error. I conclude that basis that all Richard’s Pub time stamps are one hour behind the actual time. 3:06 AM Ms. Jackson is struck on 82nd St. and around 141st Ave. This time is admitted (Exhibit 3: Agreed Statement of Facts). 10:30 AM Mr. Didechko reports to the sales manager at the car dealership that the vehicle has been stolen.

Evidence of sales manager. Mr. Didechko believes this time may have been later. 11:29 AM Mr. Didechko calls Edmonton non-emergency police line to report the stolen vehicle from the parking lot at Richard’s Pub . Transcript call time, tape- recorded call. 11:30 AM Witness reports locating the vehicle off Fort Road. Police attend shortly thereafter and confirm the location of the Dodge Charger along Fort Road near Meridian Road. Evidence of Cst. R. Ross, and Exhibit 3 11:39 AM Mr.

Didechko calls Edmonton non-emergency police line to report the vehicle was stolen from his father’s home and to supply additional detail. Transcript call time, tape- recorded call. 12:09 PM Third call to Edmonton Police report line, full serial number supplied. 2:22 PM Call to EPS report line receives advice police on their way to see Mr. Didechko.

3:00 PM (approximate) Police attended Mr. Didechko’s home and ask Mr. Didechko to come to the police station for a voluntary statement. 3:10 PM to 4:58 PM Mr. Didechko provides a voluntary cautioned and Charter -compliant statement in which he discusses his report of a stolen vehicle, but is also advised that he may be charged with various criminal offenses including hit-and-run. Evidence of Detective Weaver, and time record of video statement. July 18, 2013 Mr. Didechko is arrested and charged with the offenses before the court. 2. Mr. Didechko’s Evidence [ 25 ] 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 several sources. The first sources are the initial ‘stolen vehicle’ reports made to the EPS complaint line (Exhibits 16 and 16A). The next is the statement he 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 activities of the previous night. This was a relaxed and smooth flowing statement and its admission is not challenged. In his initial report to the Edmonton police phone line Mr.

Didechko indicated that the vehicle was stolen from the Richard’s Pub parking lot (a strip mall at 121 St. and 161 Ave., NW). Mr. Didechko quickly resiled from that position. By the time Mr. Didechko next phoned the police he reported the vehicle stolen from his father’s house (5518 145A Avenue NW). This is a prominent address in this investigation and will be referred to frequently as the “145A location”. The detail given by Mr. Didechko indicated that several people, including strangers, came and went in his father’s home the morning of October 14, 2012. Mr.

Didechko told police he left the vehicle’s keys on the kitchen table, went downstairs, and watched television to around 2:30 AM, or it “could be a little later” (October 14, 2012 interview, line 1944). Mr. Didechko concluded someone took the vehicle from his father’s driveway. Mr. Didechko in his statement to police indicates he passed out (October 14, 2012 interview, line 1954). [ 27 ] During that statement Mr. Didechko confirmed that in three separate commercial locations he had consumed a limited amount of alcohol on Saturday evening.

However, once at his father’s home he consumed more vodka, since he has no intention to drive again that night. [ 28 ] Mr. Didechko’s statement goes on to indicate that when he woke up around noon, he took his brother’s vehicle to his home, a 15 minute drive. He arrived there between 12:15 to 12:30 PM (October 14, 2012 interview, line 1996). Mr. Didechko then claims to have called his brother asking his brother to go with him to get the vehicle from Richard’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 that was the first time he realized the vehicle was not where his brother suggested that it was. [ 29 ] Mr. Didechko reports that at this point he made the first call to the EPS non-emergency line. 3. The Technological Forensic Evidence [ 30 ] Modern technology has changed the way in which police investigate crime. This case is an example. Two elements of technological forensics were utilized in this case.

The first is the modern technology of global positioning navigation; the second the technology by which personal devices, such as cell phones, seek and deliver messages through specific and identifiable cell phone communications systems towers, which are located in a larger coverage area. I will deal with the evidence provided by each of these in this segment of my factual analysis. a. Global Positioning System Data [ 31 ] 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 both aircraft and vehicles. Global positioning utilizes satellites revolving around the earth and geo-synchronized with the Earth, so that although they are moving, they move with the Earth and appear stationary in relation to the Earth. The onboard GPS equipment picks up signals from these orbiting satellites and uses hardware and software to pinpoint where the unit is at any time in relation to the geographic features of the Earth.

This feature allows the equipment to assist with real time navigation, but also, when are properly equipped and programmed, will create and retain within the saved and memorized data of the unit a ‘breadcrumb’ trail of where that unit has been and when. This travel history, including speeds averaged between points, can be extracted and reviewed. [ 32 ] Mr.

Scott Burgett, a qualified Garmin engineering expert, gave evidence which confirmed that the unit that was supplied to him by the EPS (with continuity of this unit from the vehicle confirmed through other evidence), did record the time and routing prior to and after the collision. [ 33 ] Mr. Burgett was an impressive witness sought to be qualified for the first time in a Canadian court. For this reason I wish to review his evidence during the qualification process. He has a Masters in electrical engineering, and is the director of global navigation technology at Garmin International Inc.

He holds over 15 patents in this science.

[ 34 ] Global positioning began in the mid-80s, by which time scientists had been able to reduce the size of atomic clocks (an essential element of the technology) to a point where they could be practically and safely launched into orbit on a GPS satellite. Mr. Burgett was in the field from 1991 onward and therefore his direct practical expertise as well as his education relates to the science of global positioning technology. He is an advisor to the President of the United States and to the Federal Aviation Authority (as well as other American agencies) on this technology.

That information was pried out of him due to his modesty. He has only once given evidence in the United States courts, where global positioning evidence was used to convict someone of murder. His appearance before us was his only in court appearance in Canada.

Despite this, I infer that the reason he rarely gives evidence in court, is that because counsel when seeking opposing opinions about the accuracy of GPS are quickly told that as a result of the atomic clocks (for our purposes the most accurate in the world) and the redundancy of the satellite system where a GPS unit 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 take off from the longest runway in Vancouver enter the clouds, 250 feet above the ground, fly all night through the clouds and land the next day in Beijing, China, breaking out of the clouds, 250 feet above the ground with the runway directly in front of it. Global positioning has made aviation much safer and allowed owners of vehicles to have better situational awareness when they are in unfamiliar locations, but has also become a great boon to forensic science.

Assuming that the operator / technician utilizing appropriate proprietary software is able to extract the details from the GPS system, that evidence is accurate and reliable. [ 36 ] When that GPS evidence is overlaid through a software program on a mapping program such as Google Earth small deviations and fluctuations will occur. This is not a result of errors in the GPS location, but in the errors that exist in the mapping programs.

Also, the GPS records a history of a moving vehicle, in a series of straight line segments, so a vehicle driving a gently curving road might from time to time appear to be leaving the road. This is not evidence of imprecision. Nor is it evidence of bad driving. It is simply a requirement to understand the limitations of the science. [ 37 ] An expert is an individual who by a combination of education, training or experience can provide an opinion interpreting certain evidence. In the field of GPS technology and record retrieval Mr. Burgett exemplified the gold standard of expertise.

I accept his evidence without reservation. Despite this acceptance of his evidence about the GPS, the information provided corresponded with other real evidence in the case. I also accept the GPS timing, average speeds and location of the vehicle without reservation. Where the GPS evidence conflicts with any evidence, including viva voce evidence, the GPS evidence is to be preferred. [ 38 ] I have charted the Garmin evidence of the location and times of the vehicle and compared this independent global positioning information with other known information relating to this investigation.

The comparative chart next appearing in this judgment establishes, in my view, beyond a reasonable doubt that the database of the equipment was up-to-date, the programming of the equipment and the satellite reception was accurate, and that the global positioning reports are confirmed. The recorded GPS information matches other known or admitted facts. The alignment of this data and its consistency is such that I can say beyond a reasonable doubt that the vehicle traveled where and when the Garmin GPS system indicated.

Further, where the global positioning system times differ from the estimated or reported times scheduled in paragraph 24, the GPS times are superior, absolute, and are preferred by me. The timeline in this case is as the GPS establishes it, and the oral and other evidence further confirms its accuracy in related to the stated times and locations where the vehicle was traveling and parking. [ 39 ] The GPS

schedule follows: Garmin time stamp GPS location Comparative objective evidence Notes Saturday October 13 2012 6:50 PM Leaves Chrysler dealership. Evidence of Chrysler employee places time around 6:30 PM. This time is also confirmed in Mr. Didechko’s statement to the police on October 14, 2012. 7:16 PM Parks at the home of Mr. Didechko’s father (5535 145A Ave, Edmonton). This address will be occasionally referred to as the 145A, address. 8:05 PM Arrives and parks for about one hour near the restaurant where Mr. Didechko ate supper. Location admitted by Mr.

Didechko in October 14, 2012 statement. 9:43 to 10:41 PM Vehicle parked at Jox Sports Bar . Location admitted by Mr. Didechko in October 14 2012 statement. 10:48 PM to 2:00 AM Vehicle parked at Richard’s Pub. Consistent with bar records showing Mr. Didechko leaving bar around 1:59 Sunday October 14 2012

2:24 to 2:44 AM Vehicle travels south on 82nd St., past area of accident site, turns off 82nd St. and stops in the area 2:30 to 3:09 AM Vehicle engages in unusual driving and stopping pattern, before finally stopping at the 145A address, at 3:15 The fatal collision occurs during this period at 3:06 AM See paras 40-41, below. 3:15 to 10:29 AM Vehicle stationary at 5535-145A Avenue. A seven hour period following the fatal collision. 10:29 to 10:57 AM Vehicle travels with one stop to the location where it is found by the EPS damaged and abandoned.

Tracking ends at 10:57 AM The vehicle was located at some point after 11:30 AM by a civilian and reported to the EPS. [ 40 ] The pre-accident routing pattern: After leaving Richard’s Pub at 2:00 AM the vehicle returns to the strip mall that serves as a parking lot for Jox Sports Bar . The vehicle leaves that location at 2:24 AM then proceeds at least twice past the accident scene.

However between 2:57 and 3:07 AM, the window of time for the collision, the vehicle goes to the residence on 145A Avenue, remains there for about two minutes, with the engine running, then travels back and passes by the accident scene again. [ 41 ] The post-accident routing pattern: Between 3:07-3:09 AM, immediately post-accident the vehicle parks in a residential neighborhood near an address around 86th St. and 138th Ave. This is slightly south of the collision and west of 82nd St.

It then travels north on 82nd street passing the scene of the collision on the opposite side of the road, then leaves 82nd St. and proceeds to the 145A location - Mr. Didechko’s father’s home. The vehicle stays there from 3:15 AM until 10:29 AM, at which point 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 the vehicle from the Richard’s Pub , (which he acknowledged in his statement to police), there is between that departure time and the time of the fatal 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’s home, whereupon the vehicle allegedly must have been used by someone else, there is only one time prior to the accident where the vehicle was at the 145A location. This is a two- minute stoppage in the segment between 2:57 and 3:07 AM. It is therefore impossible for Mr. Didechko to have been home before 2:30, then placing the keys on the kitchen table giving someone else the opportunity to kill Ms.

Jackson. [ 43 ] The only other alternative, that a driver was substituted during one of the other stops prior to the accident, is not indicated in Mr. Didechko’s statement to the police. Further, the GPS records establish to an absolute certainty that the vehicle spent seven hours after the accident at the home of Mr. Didechko’s father parked on the driveway. That is where the Crown asserts Mr. Didechko parked it after the fatal collision. The GPS records also clearly establish that the vehicle drove from Mr. Didechko’s father’s residence to the place where it was abandoned.

That GPS confirmed routing greatly militates against a vehicle theft preceding the collision. b. Cell Phone Tower Evidence [ 44 ] The EPS obtained warrants and/or production orders to obtain certain telecommunication records that relate to mobile telecommunication devices and their usage. These included those of Mr. Didechko and other persons of interest. The devices in question used subscriptions with Telus communications and Rogers communications. Mr. Don Calpito from Telus , and Mr. David Mak from Rogers, gave nearly identical evidence about how the cell phone system works.

Neither have any stake in the outcome of this trial. Their evidence was confirmatory in terms of the accuracy of the network system and the records created by it, and they have to both be considered objective uninvolved witnesses. Both supervised the release of cell phone record information pursuant to court order, and released nothing more than what was ordered. Both had significant familiarity with the records and the equipment that generated them. Both were confident in the accuracy and precision of the records they produced.

While neither was qualified as an expert, they gave evidence of their direct hands-on knowledge of the computer and tower technology that allows Canadians to now take for granted the telecommunication network. Their evidence is highly persuasive in this trial. [ 45 ] Most in society today are aware that what started as a wireless phone system network has now expanded to personal handheld devices, which utilize cellular networks to transmit traditional phone calls, text messages and even larger electronic documents, all through the cellular network.

However, to simplify these reasons, I will occasionally fall back to the no w dated moniker of ‘cell phones’. Mr. Didechko, his brother, and others in his family and his circle of friends all had cell phones. Some were serviced through the Rogers network others through Telus . While the systems work essentially the same, at the time of this offense Telus was continuing to record and save text messages sent by their customers so some of the Telus records include the actual text conversation between various devices of interest. Rogers was not recording text messages at the date of this investigation.

Today my understanding is that no supplier records text messages, so once a text message is erased from a telecommunication device it is gone. [ 46 ] A record of all the calls or texts made by Mr. Didechko on his phone to third parties around the critical time were entered in evidence. We also have corresponding records of other third parties of interest in this case who received those texts and, in a few cases, we actually have the text that was communicated. [ 47 ] Based on the evidence given by both Mr. Don Calpito [ Telus ], and Mr.

David Mak [ Rogers ], I can comfortably accept the concept that although 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 infrastructure of towers that are sending and receiving signals from the handheld devices. 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 receiving. I accept that all things being equal, the strongest signal will likely be coming from the closest tower.

However, this is not absolute, because the system has been designed to reduce customer dissatisfaction, so there is certain overlap between towers’ communication range. [ 48 ] Common sense would tell us that if there were two towers, by example 500 feet apart, as may be the case in a concentrated high density urban area, a signal received by one of those towers may not establish much, and certainly would not prove beyond a reasonable doubt where the devise actually is located. To expand this concept with an example, assume at one extreme there were only two towers of equal strength.

One in east Edmonton, the other in west Edmonton. Common sense would indicate that a cell phone that is communicating through the east tower is probably somewhere in east Edmonton, however, as one approaches the area of interface where the range of one tower meets the range of another; atmospheric and other conditions may give a false indication as one tower takes over the transmission due to signal strength. [ 49 ] So while the tower does not know exactly where the phone is there is a direct correlation between the strength of the signal and the device.

And while certainly there could be exceptions, there must, on a common sense basis be a direct correlation between the distances from the tower to the device. I accept that the science is not absolute, but this is the usual situation. [ 50 ] Part of the retrieved information obtained from both Rogers and Telus indicated what towers were transmitting calls between the devices of interest during the relevant time period.

The location of these towers can be plotted on a map. [ 51 ] There were three critical locations of interest in this case: the two towers that were located closest to where the collision occurred and the tower closest to where the vehicle was abandoned. [ 52 ] The Crown adduced evidence that during his first report that the vehicle was stolen Mr. Didechko’s cell phone was accessing the Rogers network tower in close proximity to the location where the vehicle was abandoned.

This tower is unique in that it is situated a significant distance from other towers and basically covering the area where the vehicle was abandoned. It is also of considerable interest that the Rogers tower 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 was abandoned on Fort Road, the Rogers Fort Road tower would be the anticipated tower that would handle calls in this area. [ 53 ] The telecommunication suppliers also have another feature on some of their transmission towers that allows additional information to be retrieved about the location of the handheld device. There are 360° that radiate around a tower. Rogers has created sector antennas on their towers and have the electronic technology that not only tells which tower is receiving 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 be expected to fall into a wedge-shaped space radiating out from the sector and to share the direction of that sector. Multiple sectors are usually provided to ensure full 360° coverage. Each sector encompasses approximately 120°. [ 54 ] I also accept that because of the mercantile interest of the companies involved, there is accurate precision tracking (literally to the second) of the transmission details from the point of view of the company and their customer.

When this information is obtained pursuant to warrant or production order, there is almost absolute certainty that the information contained is correct. That information reveals the phone numbers of the sending and receiving device, the time and the duration of the transmission, and whether the communication was a text or a phone call. [ 55 ] This detailed record keeping ensures that some information is extremely reliable, including the towers through which the call was rooted (at least at the start and end time of the transmission).

This does not mean that it is absolutely certain that the device making or receiving a call is in the immediate proximity of the routing tower, but it does lead to a strong inference that the device routed through the tower emitting the strongest signal, and that is capable of another strong inference that the tower emitting the strongest signal was the closest tower to the device. [ 56 ] The level of certainty about the last potential inference may depend on numerous factors, such as other towers in the area, usage volumes, population densities, atmospheric issues, line of sight issues, and maintenance and service issues.

The location of the towers is a specific identified location, and this location can be combined by a data technician who can overlay the various towers onto a map and identify the cell phone tower that handled various communications.

This information may be inconclusive in isolation but can reveal probabilities, possibilities, and even provide proof of certain events beyond a reasonable doubt when considered and correlated with the other objective and subjective evidence in a court case. [ 57 ] I also accept that the individual records between two suppliers tracking the same call may vary slightly in terms of the length of the transmission. This is not inaccuracy; but simply reflects slightly different billing practices.

In this case, the police became very interested in the cell phone transmissions made by the accused Ken Didechko, and his brother, Tom Didechko, around the time of the collision and the period during which the vehicle moved from the 145A location to where it was abandoned on Fort Road near Meridian Street. These critical calls are reflected on each cell phone record. At 3:08 AM, two minutes after the fatal collision, Ken Didechko’s phone called his brother, Tom. Both records of the incoming and outgoing transmission records document a very similar time: 3:08:13 (sending phone) 3:08:01 (receiving phone).

It is ominous evidence that a call of approximately 45 seconds was exchanged between these brothers immediately after the accident. The sending phone uses a tower very close to the accident while the receiving phone uses a tower very close to the 145A location. The vehicle then drives northbound past Ms. Jackson’s body, again stops, and in a longer call Ken Didechko’s phone is calling his brother Tom. We will never know what those two calls are about, but the strongest possible inference is that Ken is calling his brother Tom for advice.

The first bit of advice may be to drive back and see what’s going on, and the second – well, that depends on how much faith 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, the tower signal radius is 10 km the appropriate formula for determining the area in a circle is 10×10×3.14 = 314 km². I

accept that finding a specific phone in that large area is like finding a needle in a haystack. But the cellular network still gives us information about what haystack to look in. In this particular case, it is highly significant, and a powerful inference that numerous calls and texts made by Mr.

Didechko’s phone around the time the vehicle was abandoned, and after, were routed through the tower closest to where the vehicle was abandoned. [ 59 ] I will return to the cell phone networks in further detail, but, I anchor now in this judgment that in my view, the location of the towers, the details of the various transmissions, and the timing of those transmissions is proven to absolute certainty.

The question of where the device was at the time the communication was occurring is less certain, and that requires careful analysis and an assessment of the level of proof. [ 60 ] These records also do not prove who was actually in possession of or using the device. However, in this case, at no time in his involvement with the police did Mr. Didechko ever indicate that he was separated from his personal device. I have no evidence and it would be pure speculation to conclude that anyone else other than Mr.

Didechko was using his personal device at the time it was active in the late evening of October 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 a throw away prepaid phone and going by the name of ‘Montania Marie’, and the nature of the intimate and personal dialogue between this woman and Mr. Didechko, further augment the inference that Mr. Didechko had his phone with him through the evening and into the morning. [ 61 ] Further to this, there is positive evidence Mr. Didechko’s phone was with him. Mr.

Didechko utilized his cell phone to provide his initial stolen vehicle complaint. That would be impossible if Mr. Didechko had left his phone in the vehicle and the vehicle was stolen. Mr. Didechko also used his cell phone to provide phone numbers to Detective Weaver during his interview at 4:00 PM on October 14. The video of that interview proves beyond a reasonable doubt that Mr. Didechko had his phone when he accompanied the police to the station on October 14, and the nature of the calls the previous night and early morning, leads me to conclude beyond a reasonable doubt that at all relevant times Mr.

Didechko was 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 from an incoming and outgoing point of view, and at the receiving end the towers that handled the call are also identified. How certain are we that the device is near the towers involved depends on common sense.

It is highly likely that physically the nearest tower is also the emitter of the strongest signal and that the device is near that tower, although there can be and were exceptions. [ 63 ] The vehicle was located by EPS about 1.5 kilometers from the Rogers tower 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 electronic shadow of sector I.

There are no other closely located Rogers’s towers in that area of northeast Edmonton (see Exhibit 23). [ 64 ] Between 10:56:01 AM and 12:45:04 PM October 14, 2012 - approximately two hours - Mr. Didechko’s personal hand held device (cell phone) received or sent 20 transmissions which used the Rogers Fort Road cell tower. The Crown asserts that this proves beyond a reasonable doubt that Mr. Didechko was in the area of the abandoned vehicle at a time 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 may have routed to that tower for other logistical capacity reasons, not all of them would have used that tower unless the phone was near it. 4. The Combined GPS and Telecommunications Evidence [ 65 ] The Crown called EPS civilian witness Allison Bouthillier. Ms. Bouthillier conducted no part of the actual investigation leading to the charges against Mr. Didechko.

However, she has the technical skill, knowledge, and appropriate computer tools that she can overlay identified known locations, places and routes onto a map and produce an exhibit, which can provide useful evidence to the court provided that the inputting locations are ultimately established to be accurate. [ 66 ] Ms. Bouthillier programed on a map of Edmonton the locations identified and developed in the investigation.

She took the identified cell phone towers and plotted these on the map, as well as the calls coming from and being received by the Didechko brothers at relevant times. [ 67 ] I am satisfied that the information that Ms. Bouthillier placed on the map is accurate and accurately describes each item. For example, there is little doubt about the location of the two bars that that Mr. Didechko attended during the evening of October 12.

Nor is there any doubt about the location of the cell phone towers that were receiving and transmitting messages, and I accept that it has been proven beyond a reasonable doubt that the GPS information accurately describes the path the vehicle followed, both as to time and routing. [ 68 ] When all of this data is assembled it paints an internally consistent picture of the vehicle being driven to the two bars, then leaving those bars then proceeding several times north and south on 82nd St.

The vehicle reached 82 nd St. and 141 st Ave. at virtually the time identified as the collision time, and then proceeding to Mr. Didechko’s father’s home. The vehicle remained parked at that address for seven hours, then travelled to the location where it was abandoned on Fort Road. This evidence provides strong support for the theory of the Crown in this case. [ 69 ] In a nutshell, and I will return to this, the technical information provided by Garmin , the GPS manufacturer, and the forensic evidence disclosed by the use of cell phones and routing transmission towers is not reconcilable with Mr.

Didechko’s oral information about his whereabouts at the critical time. 5. Applying the Law to the Critical Facts of this Case [ 70 ] 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 occupant with a legal duty at the time Ms. Jackson was struck?

a. W(

D) Step 1 [ 71 ] 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 the time of the collision. This is the first step of the W(

D) analysis. If I believe Mr. Didechko’s evidence then I must acquit him. [ 72 ] I do not believe his denials for a number of reasons. First, his statements are internally inconsistent. He changed his story between the police reports and his longer interview. These narratives are externally inconsistent with the other technical scientific evidence that is overwhelming and reliable. For example, Mr. Didechko changed the location 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 interview, line 201) that he concluded the vehicle was stolen only when his brother came to pick him up. In his longer interview with the police he indicated he drove to his own home using his brother’s Jeep, then called his brother to drive to the bar and pick up the car, and was told the car was at his father’s home – the place he had just left.

There are other anomalies and inconsistencies between his various statements. [ 73 ] Further, the extensive cell phone activity on Mr. Didechko’s cell phone in the period immediately before Ms. Jackson was struck and immediately after makes it absolutely certain that he was not sleeping in his father’s home. His phone was making repetitive calls initially of a flirtatious and implicitly sexual nature between the individual with throwaway phone identified as Montania Marie, and after Ms. Jackson was struck, repeated phone calls were made to his brother and other others.

These communications ultimately culminate with a 5:00 AM text message to Montania Marie: “something bad happened sry”. No one could believe Mr. Didechko’s evidence, it is overwhelmed by the objective scientific evidence. [ 74 ] I reject Mr. Didechko’s account of his whereabouts and the activities of the vehicle, which ends step one of W(D). b. W(

D) Step 2 [ 75 ] Moving to the second step of the W(

D) analysis, having not believed Mr. Didechko account, does his evidence at least raise a reasonable doubt? Here Mr. Didechko’s evidence cannot do so because it clashes so greatly and on material particulars with the other forensic evidence. This information is completely irreconcilable. It is not possible for Mr. Didechko to be believed to the point of raising a reasonable doubt when compared to the objective forensic evidence that is credible, and unchallengeable.

Further, how could he possibly have gotten the plate number and serial number of the vehicle in his intervening calls, if he did not have access to the vehicle between those calls? In his first call to EPS Mr. 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 information and the partial VIN number. Only on his third call to the EPS did he have all the information to properly report a stolen vehicle.

While he did make one call to the dealer’s representative, the representative did not indicate that phone call was a request to supply the number of the plate or the VIN number of the vehicle. The speed with which Mr. Didechko obtained these two additional pieces of information leads to a strong inference 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. Statements that cannot possibly be true cannot raise a reasonable doubt.

The vehicle was parked on his father’s driveway (the address where Mr. Didechko was purported to be sleeping) from 3:15 AM to nearly 11 AM on the Sunday morning. This time spans the period from just a few minutes after the fatal collision to the time the vehicle was transported from his father’s driveway to the place where it was abandoned and later found by the EPS. [ 77 ] The reconstruction of the routes traveled by the vehicle and the various times it arrived at certain locations mean that Mr. Didechko must have been lying to the police in his statement.

Therefore, his own evidence 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’s evidence does not create a reasonable doubt. This, however, does not mean that he is automatically guilty of the crimes against which he has been charged. Instead, I proceed to the third step of the W(

D) procedure, that I must carefully consider all of the evidence which I do accept to determine whether the Crown has proven Mr. Didechko’s guilt beyond a reasonable doubt. c. W(

D) Step 3 [ 79 ] We begin with the proposition that Mr. Didechko drove the vehicle from Richard’s Pub and ultimately parked at his father’s home. He admits as much to the police. There were several stops along the way and several unexplained sequences of backtracking back and forth on 82nd St. Mr. Didechko told the police that he drove his brother back to his father’s home at which point a party started and Mr. Didechko fell asleep downstairs. Mr.

Didechko has clearly shifted the times, but I find beyond a reasonable doubt that he was operating the vehicle and was the sole operator between the time it left Richard’s Pub and the time it pulled into his father’s driveway at 3:15 AM. Could the driver have changed in the two minutes the vehicle was at the home just before the fatal collision? This is inconsistent with Mr. Didechko’s statement that he had stopped driving before 2:30 AM. It is more consistent with him driving his brother Tom home to their father’s house. Tom perhaps gets a party going but Ken Didechko starts cruising back in the area of 82nd St.

It therefore is highly probable that Mr. Didechko was operating the vehicle at 3:06 AM when it struck Faith Jackson. Other evidence turns this high probability into proof beyond a reasonable doubt. [ 80 ] First, there is also a confirmatory telephone call from Mr.

Didechko’s cell phone at 3:05:38 on the morning of the collision which starts at a tower on 82nd St. north of the collision site, but ends using a tower slightly south and east of the accident scene (see Exhibit 23). [ 81 ] The representative from Rogers fairly indicated that the switch between the two towers during one call does not conclusively mean that the phone was in motion and moving closer to the second tower, however, here, where the GPS record indicates the vehicle is

moving south on 82nd 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 inference that: 1. Mr. Didechko was on his phone and driving the vehicle, 2. The vehicle travelled south on 82nd St. 22 seconds before the accident and 3. Mr. Didechko was just off his phone six seconds before the accident. [ 82 ] Further, there is a 35 second call at 3:08:13, less than two minutes after the accident.

This second call starts and completes on the tower where the earlier call ended, while the vehicle is slightly south and to the east of the accident. Between 3:07 AM and 3:09 AM the vehicle has come to a stop and remains stopped for about two minutes near 8646 138th Ave. NW. During that time Mr. Didechko’s phone was communicating through a tower less than six blocks away at 7408 139th Ave. This is the tower notionally closest to where the vehicle had stopped after the accident. Importantly, this tower was sectorized which provides more detail on the area where the vehicle was stopped (see para 53, above).

The recipient of that call was Mr. Tom Didechko. His phone records indicate his cell phone was routed through a tower in close proximity to his father’s house at 145A Avenue. [ 83 ] Cell tower tracking is not definitive in isolation, and in isolation may not constitute proof beyond a reasonable doubt. However, when it is factored and considered along with the GPS tracking, inferences can be drawn that lead to proof beyond a reasonable doubt that Mr. Didechko was in that vehicle a few seconds before the collision and a few seconds after and at that point was using his cell phone.

Obviously, this evidence is completely inconsistent with Mr. Didechko’s account that he was home at his father’s house and passed out. First, he would not be on the phone at those times, and, secondly, the phone would not be utilizing those towers. [ 84 ] I conclude from the evidence which I do accept that around 3:06 AM in the morning, Mr. Ken Didechko is driving the vehicle south bound on 82nd St. at the time that Ms. Jackson was struck fatally. Mr. Didechko struck Ms. Jackson, and left the scene, however, he then stopped on 138th Ave. NW, where he makes a call to his brother.

Then, perhaps overcome with guilt, perhaps grief, fear, curiosity, or on advice from his brother, he returned to the accident scene to see what was going on. He now had another chance to do what is right - to stop and report what had happened 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 AM until 10:29 AM the next morning, when he took the vehicle and abandoned it along Fort Road, by Meridian Street. d. The Calls to the EPS Non-Emergency Report Line [ 85 ] 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 complaint about a car theft. [ 86 ] Mr. Didechko’s cell phone records shows the first of these calls was at 11:20:39 AM on October 14, the second was at 11:33:08 AM, the third at 12:03:22 AM, and the fourth at 2:15:16 PM. The first three calls connected through the nearest and most probable Rogers tower, which is the tower previously described that is close to where the vehicle was abandoned.

The last and much later call uses a tower appropriate and reasonably aligned and closest to Mr. Didechko’s home. After a while circumstantial evidence can become overwhelming! [ 87 ] In the second of these calls, Mr. Didechko was asked the phone number from where he was calling and he gave his cell phone number. The calls 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 the police require, but he is able to accumulate that as the calls progress. Second, the first three of these calls are routed through the Fort Road Rogers tower closest to where the vehicle was abandoned. If Mr. Didechko had been calling the EPS report line from his father’s home, or his own home, as indicated in his description of his travel that morning, other more realistic closer towers would have been accessed. I conclude Mr. Didechko was reporting the theft of the vehicle from the area where he himself abandoned it. [ 89 ] Mr.

Didechko does make a lengthy fourth phone call to the EPS report line. This call transmits through a tower close to Mr. Didechko’s home, 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 his phone “had died” (October 14, 2012 interview, line 400). This was the last call to the EPS and at this point Mr. Didechko was at his home. He was told by EPS the police were on their way to see him. They arrived there 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 doubling back around the scene of the accident, and also be travelling in the area Mr. Didechko was cruising prior to the collision. Last, if the unidentified alternative driver was a friend from the party who actually did decide to return to the party after the theft, that individual would have left the vehicle in the father’s driveway to cast suspicion away from the thief and back on Mr. Didechko. Had Mr.

Didechko clearly been the victim of a theft by a party attender who returned the vehicle he would have reported the vehicle damaged right from its location on the driveway to not impede the police investigation. There would be no need for him to take the vehicle at 10:28 AM to its abandonment place on Fort Road. Only someone who knew the vehicle had been in a serious collision would need to do that.

[ 91 ] The routing of the accident, the parking of the vehicle, and then its later delivery to the location where it was abandoned, as well as the cell phone call history is completely inconsistent with anybody other than Mr. Ken Didechko driving the vehicle. Putting it the other way it is completely consistent with Mr. Ken Didechko being the vehicle operator during the hit and run. e. Did Mr. Didechko Know Ms. Jackson’s Degree of Injury [ 92 ] I am satisfied beyond a reasonable doubt that Mr. Ken Didechko was driving the vehicle when it struck Ms. Jackson.

The evidence is overwhelming 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 or control of a vehicle, vessel or aircraft that is involved in an accident with (

a) another person, ... and with intent to escape civil or criminal liability fails to stop the vehicle, ... give his or her name and address and, where any person has been injured or appears to require assistance, offer assistance. [ 94 ] Criminal Code , s 252(2) creates a presumption that if a person fails to stop, render assistance, and give their name, then that presumptively proves that the failure to do those things was with “an intent to escape civil or criminal liability.” Mr. Didechko did none of those things.

He is therefore presumed to have attempted to escape the consequences of his actions. [ 95 ] I therefore conclude Mr. Didechko had a duty to stop and render assistance to Ms. Jackson. He failed to do so. The count of leaving the scene of an accident has been made out. However, this count, which we shorthand to ‘hit and run’, has several component parts to it.

The Crown has prosecuted this charge at the most serious level, Criminal Code , s 252(1.3) leaving the scene of a motor vehicle collision knowing that you have caused death to someone or sufficient bodily harm that you are reckless 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 life if: (

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

b) the person knows that bodily harm has been caused to another person involved in the accident and is reckless as to whether the 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 the Dodge charger, means that Mr. Didechko had to have known either that he had killed Ms. Jackson, or that he seriously injured her. His leaving the 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 by then the arrival of the ambulance. Both would inform him that this was a serious collision with a pedestrian, with a serious consequence. I conclude that essential degree of injury element and the serious nature of the collision has been made out to at least to the level of knowledge of bodily 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), obstructing justice: 139(2) Everyone who wilfully attempts in any manner other than a manner described in subsection (1) to obstruct, pervert or defeat the course of justice is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years. [ 99 ] This

section criminalizes a willful attempt to obstruct, pervert, or defeat the course of justice in a judicial proceeding. Canadian cases approve the common sense approach that this level of obstruction to pervert or obstruct or defeat the course of justice can also apply in the investigative stage. In this case, I found factually that Mr. Didechko was the driver of a vehicle that hit Ms. Jackson.

In an attempt to evade liability for that misconduct he first fled the scene, and then in an attempt to confuse and divert the police investigation, he reported that the vehicle was stolen and took steps to relocate the vehicle away from his father’s home to add plausibility to the story. I conclude beyond doubt that he had knowledge of the true state of affairs and intentionally made a false complaint and allegations in an attempt to obstruct the course of justice in a criminal investigation. [ 100 ] I therefore find Mr. Didechko guilty of Count 1. g.

Dangerous Driving Causing Death [ 101 ] The last count is the count of Criminal Code , s 249, dangerous driving causing death. The law on this issue requires certainty and proof beyond a reasonable doubt that at the time in question, Mr. Didechko was driving in a way that constituted a significant or marked departure from the driving pattern of a reasonably prudent person: R v Beatty , 2008 SCC 5 , [2008] 1 SCR 49. This was again emphasised in R v Roy, 2012 SCC 26 , [2012] 2 SCR 60. [ 102 ] These two cases make clear that dangerous driving is not made out as a charge simply because of a bad outcome. Here, it is

clear that the outcome was the worst possible: a young woman lost her life. Second, in many dangerous driving cases, the accused will give an explanation to perhaps explain a medical incident, or an unusual driving circumstance to explain away that which appears superficially to indicate the vehicle was operated in a dangerous manner. Despite many cases resulting in an acquittal where these explanations have been given, there is no burden on the accused to explain a driving pattern. [ 103 ] There is little if any, evidence here that the vehicle was being operated in a dangerous way.

The first responder from the fire department who observed Ms. Jackson struck and noted that the vehicle flashed its brake lights, but did not stop as required by law, was unable to say that the vehicle had been speeding or breaching any other observable rule of the road prior to that point. The Charger’s onboard GPS system reflects only modestly elevated speed. While the lighting on 82nd St., a major Edmonton artery, was more than adequate, Ms. Jackson was on the driving portion of the lane. How and when she got there in relation to the collision 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 attended. The security video from Richard’s Pub shows the consumption of at least two shots (1 ounce each of at least 40% alcohol), and several double drinks, over the course of the evening. The security tapes at the establishment show Mr. Didechko purchasing the equivalent of 9 drinks but the tapes do not film him continuously so there is no conclusive evidence that he consumed all those drinks. He was milling around with others in a stand up portion of the bar.

Therefore, based on a combination of the videos and Mr. Didechko’s own admissions he may have consumed the equivalent of 11 standard drinks over a significant time period but 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 expressed the view that he may be over 240 pounds. He is of an age where he may well be a seasoned drinker. It is difficult to conclude that the Crown has proven beyond a reasonable doubt that he was impaired by alcohol.

There was of course no expert evidence on the effect of alcohol on driving, but I may take judicial notice of the fact that although alcohol affects everybody differently driving skill and motor coordination generally deteriorates with the onset of the consumption of alcohol. The level of deterioration in each driver and whether such deterioration leads to an inescapable finding of dangerous driving probably requires expert evidence. [ 105 ] There is also the reality that Mr.

Didechko was on his cell phone just before the collision, and it is a common-sense proposition that such activity 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 phone system. 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 regular demonstration vehicle.

Vehicular inexperience may also in some circumstances lead to dangerous driving, if the operator is unfamiliar with the vehicle and the vehicle is a high performance vehicle capable of attaining high speeds quickly. [ 106 ] However, here, the GPS evidence indicates that in the tracking segment, which started immediately before the collision and ended immediately after, the average speed was only 72 km/h.

While I accept that that could be the average of a high-speed and a reduced speed, my understanding is that if the vehicle had rapidly decelerated the GPS, would have sensed this and created another tracking segment. Also, the eye witness indicated that the brake lights went on, but the vehicle simply drove away. The average speed of 72 km an hour was quite possibly the impact speed as well. The standard driving speed in an urban area is 50 km an hour, unless otherwise posted. 82nd St. is a major thoroughfare, so the posted speed limit may have been 60 km an hour.

Either way, this is not excessive speed on a nearly empty, well-lit street. At 3:00 AM in the morning, one would expect few users of the road and that is exactly the case here. The traffic was light. [ 107 ] We have a situation where a pedestrian on the driving portion of the road, but not in a crosswalk, is struck late at night by an individual who is proven to be speeding and proven to have consumed alcohol. The Crown has not proven excessive speed, any other driving aberration nor impairment beyond a reasonable doubt.

An eyewitness to the collision observed no other unusual circumstance, except that the vehicle involved in 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 he was probably over the legal limit. However, without a proper description of how and when and for how long Ms. Jackson had been on the driving portion of the road, and without any further conclusive evidence of impairment or distraction, my high suspicion cannot amount to proof beyond a reasonable doubt of dangerous driving.

Nor can it be said that because he fled, the consequence that he intended to escape was an impaired driving charge. The consequence could just as easily have been the civil liability for striking Ms. Jackson, or the commercial prejudice to him by driving his employer’s vehicle having consumed alcohol, late at night, and clearly not then engaged in the business of his employer. [ 109 ] Mr. Didechko must get the benefit of this doubt. This is an example of 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, but the Crown has still failed to prove beyond a reasonable doubt that he was guilty of dangerous driving. High suspicion and probable guilt cannot morph into proof beyond a reasonable doubt on Count 4. G. Conclusion [ 110 ] 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 occurred I find you guilty as charged • on Count 4, despite my suspicion, the Crown has not proven your guilt beyond a reasonable doubt and you get the benefit of that doubt, you are found not guilty of this count. [ 111 ] You may be seated while we discuss how you should be sentenced for the crimes I have convicted you of.

Heard on the 24 th to 25 th days of May, 2016 and the 2 nd , 3 rd , 6 th , 20 th and 27 th days of June, 2016 . Dated at the City of Edmonton, Alberta this 4th day of July, 2016. A.W. Germain J.C.Q.B.A. Appearances: Chady F. Moustarah and Kelsey Selbee Moustarah & Company for the Accused James E. Stewart Specialized Prosecution Branch for the Crown

Schedule A Kenneth Raymond Didechko stands charged: 1. That he, on or about the 14 th day of October, 2012, at or near Edmonton, Alberta, did unlawfully and wilfully attempt to obstruct, pervert or defeat the course of justice by giving false statement that vehicle involved in hit/run was stolen, contrary to Section 139(2) of the Criminal Code of Canada . 2. That he, on or about the 14 th day of October, 2012, at or near Edmonton, Alberta, did unlawfully cause bodily harm to Faith Jackson, contrary to

Section 269 or the Criminal Code of Canada . 3.

That he, on or about the 14 th day or October, 2012, at or near Edmonton, Alberta, having had the care, charge or control of a vehicle that was involved in an accident with Faith Jackson, and knowing that the said Faith Jackson died, or knowing that the said Faith Jackson suffered bodily harm and being reckless as to whether death ensued, did, with intent to escape civil or criminal liability, unlawfully fail to stop his vehicle, give his name and address and offer assistance to any person injured or appearing to require assistance, contrary to Section 252(1.3) of the Criminal Code of Canada . 4.

That he, on or about the 14 th day or October, 2012, at or near Edmonton, Alberta, did operate a motor vehicle in a manner that was dangerous to the public and thereby caused the death of Faith Jackson, contrary to Section 249(4) of the Criminal Code of Canada .