R. v. A.A. Date:, 2003 BCPC 92

Citation: R. v. A.A. Date: 20030324 2003 BCPC 0092 File No: 39680 Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. A. A. REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE W.J. RODGERS Counsel for the Crown: T. Cockfield Counsel for the Defendant: H. Hunter Place of Hearing: North Vancouver, B.C.

Dates of Hearing: January 20, 21, 2003 Date of Judgment: March 24, 2003 [ 1 ] A.A. is charged that on or about the 9 th day of February 2001, at or near West Vancouver, in the Province of British Columbia, he did operate a motor vehicle in a manner that was dangerous to the public having regard to all the circumstances including the nature, condition and use of the place at which the motor vehicle was being operated and the amount of traffic that at the time was or might reasonably be expected to be at that place, and thereby did cause the death of P.Y., contrary to Section 249(4) of the Criminal Code . [ 2 ] On February 9, 2001, A.A. was driving westbound on Marine Drive in West Vancouver at approximately 11:00 p.m.

He was 19 years of age and had been driving for about one year. Just west of the Park Royal Shopping Centre, Mr. A. met with a car being driven by his friend, S.S. The two cars were stopped by a red light at an intersection on Marine Drive. S. was in the lane closest to the center and Mr. A. was in the curb lane. Mr. A. lowered the driver's side window of his vehicle and spoke to S. and his passenger, P.Y. After a short conversation between the friends, the light turned green and the two cars accelerated away from the stop light at a high rate of speed.

Just after the intersection of 19 th Street and Marine Drive, S. lost control of his car and crashed into the West Vancouver Library. Mr. Y., the passenger in S.'s car, died as a result of injuries suffered in the crash. [ 3 ] The issue in this case is to determine if the Crown has proven beyond a reasonable doubt that the driving of Mr. A. "caused" the death of Mr. Y. It was conceded the street race was dangerous driving by Mr. A.; however, it is submitted that Mr. A. abandoned the race prior to the crash and therefore the Court should have a reasonable doubt that he "caused" the death of Mr.

Y. [ 4 ] It is necessary to carefully review the evidence of the witnesses concerning what happened between the time the two cars started to accelerate and S. crashed into the library. [ 5 ] W.M., a senior Vancouver lawyer, was travelling westbound on Marine Drive in a vehicle being driven by his friend, I.W. His attention was drawn to a new BMW coupe which passed on the left side. Mr. M. has an interest in BMW motor vehicles and remarked upon this new, very powerful automobile. [ 6 ] Mr. M. testified that the BMW drove beside another car and the two vehicles drove side by side along Marine Drive.

It is not disputed that S. was driving the BMW and Mr. A. was driving the other car. Mr. M. lost sight of the two vehicles for a short distance and then saw them again coming to a stop at an intersection because of a red light. When the light turned green, he said both vehicles "took off". They accelerated so hard that the back ends of the cars went down. Both vehicles continued to accelerate towards 19 th Street. [ 7 ] At 19 th Street, Marine Drive turns slightly to the right just before the West Vancouver library. Mr. M. said Mr. A.'s car was perhaps one car-length behind S.'s car going into the corner.

He did not notice the brake lights on the BMW come on but he said it was possible that the brake lights of the other car came on just at the curve. A few moments later, Mr. M. came upon the BMW which had crashed into the West Vancouver Library. He stopped to give assistance. [ 8 ] Mr. W. was the driver of the vehicle in which Mr. M. was a passenger. He is a chartered accountant and the chief financial officer of a British Columbia mining company. Like Mr. M., he noticed S.'s BMW as it passed him on Marine Drive. Mr. W. testified the street race between S. and Mr.

A. started at the intersection of 15 th Street or 16 th Street. He said the two vehicles accelerated at a high rate of speed and were fairly close together. He could not say whether one vehicle was ahead of the other as they reached the corner at the 19 th Street intersection. When he came upon the crash, he stopped to give assistance. [ 9 ] N.B. was sitting in a car with her friend, S.N., on the north side of Marine Drive when S. and Mr. A. drove by. Ms. B. is 28 years of age and she has been driving for 11 years. Ms. B. and Mr. S.N. had stopped so that Mr. S.N. could use the Royal Bank cash machine.

Ms. B. is employed by the Royal Bank and is familiar with the location where she and Mr. S.N. stopped. The Royal Bank is on the northwest corner of the intersection of 17th Street and Marine Drive. Therefore I accept Ms. B.'s evidence that she was parked just west of the 17 th Street intersection. [ 10 ] Ms. B. was sitting in the front passenger seat when the two cars went by. She said they were side by side and she estimated their speed to be 100 to 120 kph. She said she was in shock as she watched the two cars go by and then disappear around the corner at 19 th Street.

She described the two vehicles as "racing each other". It is significant that Ms. B. noticed the brake lights of one vehicle flicker on and off two to four times just before the curve at the 19 th Street intersection. She was not sure which of the vehicles had braked. She was certain that the brake lights had not come on at the 18 th Street intersection. [ 11 ] S.N. was sitting in the driver's seat of his vehicle with Ms. B. when the two vehicles passed. He testified the two cars were side by side when they passed and were travelling at an estimated speed of 100 kph.

He watched the two cars as they rounded the corner after the 19 th Street intersection. He thought both cars were travelling side by side as they approached the corner; however, he agreed that it was difficult to be certain that the cars were side by side at this point. During his examination in chief, Mr. S.N. said he did not remember the brake lights on the vehicles coming on. In cross-examination, he was shown a copy of a statement he gave to the police on the 16 th of February 2001.

In that statement, he wrote that he observed brake lights flickering as the cars entered the corner after the 19 th Street intersection. He agreed that his statement would be correct. He could not remember if the brake lights he saw were brake lights on one or both of the cars. [ 12 ] The evidence of Ms. B. and Mr. S.N., which I accept completely, proves that the street race commenced prior to the intersection of 17 th Street. When the two cars passed Ms. B. and Mr. S.N. just after the corner of 17 th Street, they were travelling at a minimum speed of 100 kph.

The cars could not have accelerated to that speed if the race started from 17 th Street. [ 13 ] It is unclear whether the race started at the intersection of 15 th Street or 16 th Street. I will assume it started at 16 th Street as that assumption is more favourable to the accused. [ 14 ] Three of the passengers in Mr. A.'s car testified as to what occurred on the night of February 9 th , 2001. They are N.N., H.V. and B.N. [ 15 ] N.N. was sitting in the back seat behind the driver. On February 9 th , 2001 he was 18 years old. He was a friend of Mr. A. whom he knew in high school.

He testified that S. drove up beside Mr. A. just after the Park Royal Shopping Centre and travelled along Marine Drive to the red light at the intersection of 15 th or 16 th Streets. Mr. N.N. heard Mr. A. speaking to S. while the two vehicles were stopped at the red light. The two vehicles began to "rev up" their engines. [ 16 ] When the light turned green, the two cars accelerated. Mr. N.N. estimated Mr. A.'s vehicle reached a speed of approximately 100 kph. He said the BMW was beside or slightly ahead of Mr. A.'s car as they approached the 19 th Street intersection. [ 17 ] Mr. N.N. was certain that Mr.

A. slowed his vehicle prior to the curve at 19 th Street. He wasn't certain exactly where this occurred. When S.'s car went out of control, Mr. N.N. estimated S.'s car was just 30 metres ahead of Mr. A. [ 18 ] H.V. was sitting in the front passenger seat of Mr. A.'s vehicle. He was a close friend of Mr. A.'s whom he knew at high school. He testified that S.'s car stopped beside Mr. A.'s car on Marine Drive but he was not certain at which intersection this occurred. Mr. A. spoke with Mr. Y. and S. S. began to rev the engine of his car and Mr. A. said something to the effect that there were five people in his car.

When the light turned green, both cars accelerated. At some point during the street race, Mr. H.V. looked at the speedometer on Mr. A.'s vehicle and saw it pass through the 100 kph. mark. [ 19 ] Mr. H.V. testified that Mr. A. began to slow down before reaching the curve. He heard Mr. A. say words to the effect "I am not going to do this". He said that he shifted down and maybe applied the brakes. Mr. H.V. was asked where this occurred. He said it occurred halfway between the intersections of 18 th Street and 19 th Street. By the time Mr. A. started to enter the curve after the 19 th Street intersection, Mr.

H.V. estimated the speed to be 65 or 70 kph. He said that S.'s car was so far ahead of them that he lost sight of it for approximately one second as it rounded the corner. [ 20 ] I must treat the evidence of Mr. H.V. with some suspicion. Following the crash, he discussed what occurred with Mr. A.. The two of them agreed to fabricate a story and lie to the police. On February 12 th , Mr. H.V. was interviewed by a West Vancouver police officer. He said that he and Mr. A. were walking along Marine Drive when two cars went speeding by.

Two days later, after learning that some of the other passengers were going to tell the truth, he went to the West Vancouver Police and gave a second statement. [ 21 ] B.N. was 18 years of age and attending high school with Mr. A. He was sitting in the back seat on the right hand side. When the street race started, he said "both drivers pushed the accelerators as hard as you could". He recalled Mr. A. stopped accelerating and S.'s car went ahead. He saw sparks coming from the back of S.'s car and it lost control. [ 22 ] Following the accident, Mr. A. told Mr. B. N. to lie about what happened. Mr. B.

N. went to the police on February 12 th and gave what he described as "mostly truthful" statement. He admits that he did not tell the police everything that had happened. Mr. B.N.'s willingness to lie on behalf of Mr. A. causes me to question his credibility. [ 23 ] Constable Lee of the West Vancouver Police Department arrived at the Library shortly after 11:00 p.m. on February 9, 2001. Three hours later, he attended at the Lions Gate Hospital where he obtained blood samples from S. which were analysed to contain 99 milligrams of alcohol per 100 millilitres of blood.

With the consent of both counsel, I accept the opinion evidence of Cst. Lee that S.'s blood/alcohol reading at the time of the accident would have been higher; that everyone with a blood alcohol reading in excess of 100 milligrams is impaired; and that a person operating a motor vehicle at speeds between 140 kph - 160 kph with a blood alcohol reading in

excess of 100 milligrams would have great difficulty in controlling the vehicle. [ 24 ] Cst. Champer of the West Vancouver Police Department was accepted by the Court as qualified to give expert opinion evidence concerning the analysis of motor vehicle accidents. He described Marine Drive in West Vancouver between 13 th Street and 19 th Street.

He said that the speed limit is 50 kph.; there are two lanes of traffic eastbound and two lanes of traffic westbound with parking lanes next to the curbs; there are stores on both sides of the street and many residential apartment buildings nearby. [ 25 ] By examining the tire marks on the road, Cst. Champer formed the opinion that the minimum speed of S. as he entered the corner after the 19 th Street intersection was 142 kph. The speed could have been significantly higher as Cst. Champer testified that he used formulae most favourable to the driver. [ 26 ] Cst.

Champer was of the opinion that the critical speed for the corner was 153 kph. which means a vehicle could not have successfully negotiated the turn at a speed of 153 kph. or greater. [ 27 ] Cst. Champer said that the BMW which was operated by S. had a top speed of 205 kph. It could accelerate from 0 to 100 kph. in 7.5 seconds. In West Vancouver, each block is slightly more than 133 meters in length. The distance from the intersection of Marine Drive and 16 th Street to the curve at the 19 th Street intersection is 400 meters.

At 140 kph a vehicle is travelling 40 meters per second; therefore at 140 kph, a vehicle would be travelling one block every 3 seconds. [ 28 ] Cst. Champer was asked his opinion as to the reason why S.'s car crashed into the West Vancouver Library. He said there were three causes: 1) excessive and unsafe speed; 2) improper steering; 3) alcohol consumption. [ 29 ] Mr. A. testified. He is not a credible witness. He lied to the police in order to hide his involvement. He said he was walking along Marine Drive when two cars went speeding past. He also persuaded his friends to lie to the police.

Under cross-examination he seemed evasive; perhaps he had told so many different stories he could not be certain which version he was advancing during the trial. [ 30 ] Mr A. testified he met his friend S. as he was driving west on Marine Drive. He was not certain whether the race began at the intersection of 15 th , 16 th or 17 th Streets. He started accelerating away from the traffic light and continued along Marine Drive. He is unable to say what speed he reached. [ 31 ] Mr. A. testified he decided to slow his vehicle and stop the race. He says this occurred prior to the 19 th Street intersection.

Photographs of Marine Drive were entered as exhibits during the trial. By looking at one of these photographs, Mr. A. said he started to slow his vehicle at a point where a red car was parked on the side of the road. Cst. Champer, after examining the photograph, was able to say that the distance between the red car to the start of the skid mark from S.'s BMW was 87 meters. [ 32 ] Using Cst. Champer's calculations that the minimum speed of the BMW was 140 kph and that a vehicle at 140 kms. per hour travels 40 meters per second, I conclude Mr.

A. was, at most, 2 seconds behind S. at the time the BMW went out of control. [ 33 ] Dangerous driving has been defined as driving a motor vehicle in a manner that is a marked departure from the standard of care of a reasonably prudent driver in all the circumstances. Such circumstances must be examined in the context of the nature, condition and use of the highway by the accused and the reasonably anticipated use by others. There must be danger to the public actually present or which might reasonably be expected in the vicinity when the driving occurred ( see Hundal v.

The Queen (1993) 1992 CanLII 12819 (ON CA) , 78 CCC (3d) 97 (SCC) ; R . v. Rajic

(1993) A.D. C.C.C. (3d) 533 (OCA) (Leave to Appeal refused) [1993] 3 S.C.R. viii). [ 34 ] Street racing on a public highway, especially in a residential or commercial area, clearly constitutes the offence of dangerous driving as defined in the Criminal Code . Accordingly, I find the Crown has proven beyond a reasonable doubt Mr. A.'s street racing along Marine Drive constitutes the offence of dangerous driving. This finding was not disputed by counsel for Mr. A. [ 35 ] I turn now to consider the issue of "causation". In R. v. Bhalru and Khosa , (Oct. 18, 2002, SCBC, Van.

Registry CC011518,) Loo, J. at para 42 stated the Crown must prove beyond a reasonable doubt that the driving of an accused was a contributing cause of the death of another person beyond the de minimus range. With the greatest of respect, I suggest the Crown must meet a higher standard than "beyond the de minimus range". I adopt the tests set out by Hill, J in R. v.

Menezes 2002 CanLII 49654 (ON SC) , [2002] OJ 551 at para 89 who said the conduct of the accused must be "a significant contributing cause", "beyond negligible" and "a material cause" of the death. [ 36 ] A death caused as a result of a driver's involvement in a race on a public street can amount to dangerous driving causing death. The death of a passenger in one of the vehicles participating in a street race can be the basis for a conviction for dangerous driving causing death against the other participating driver ( see R . v. RRL (1998) 1988 CanLII 9882 (ON CA) , 8 MVR (2d) 116 (OCA) ; R . v.

Elphick [1995] OJ 2167 (OCA) ). [ 37 ] Counsel for Mr. A. submits that the Crown has failed to establish beyond a reasonable doubt the causal link between Mr. A.'s dangerous driving and the death of Mr. Y. It is submitted firstly that Mr. A. had abandoned the race prior to the crash and secondly, that the cause of the crash was not related to the street racing. [ 38 ] Did Mr. A. slow his vehicle near the intersection of Marine Drive and 19 th Street? Mr. A. testified he had slowed his vehicle by downshifting and braking prior to the intersection. Mr B.N. and Mr. N.N. also testified that they felt Mr.

A.'s vehicle slow prior to the intersection. Mr. A. and Mr. N. N. are admitted liars who fabricated evidence in order to mislead the police. However, the proper test to be applied by a trial court when assessing the evidence of an accused is not whether the accused is believed. The proper test is whether the evidence of the accused could reasonably be true. When applying this test, I also consider the evidence of Mr. M., Ms. B. and Mr. S.N. These witnesses saw the brake lights of one of the racing vehicles flicker on and off at or near the 19 th Street intersection. This evidence supports the testimony of Mr. A.

Also, I accept, with some suspicion, the evidence of Mr. V. that Mr. A. slowed to 65 to 70 kph. Therefore, I find that Mr. A. applied his brakes and slowed to a speed of 65 to 70 kph in the vicinity of the 19 th Street intersection.

[ 39 ] Where did Mr A. begin to slow his vehicle? The witnesses were unable to say with any precision where Mr. A. began to slow. The evidence of Mr. A. is that he began to slow his car before the intersection at a point depicted in a police photograph of the scene. Cst. Champer testified this point identified by Mr. A. is 87 meters from the point where S. lost control of the BMW. The Court was not told the distance between the point identified by Mr. A. and the intersection. I find it could reasonably be true that Mr.

A. began to slow his vehicle 40 to 50 meters prior to the intersection. [ 40 ] By slowing just before the 19 th Street intersection, did Mr. A. abandon the street race so as to severe the causal connection between the street race and the crash? In considering this question, the following facts are relevant: The race started at the intersection of 16 th Street and had continued for 21/2 blocks which is a distance of at least 300 meters; Mr. A. slowed at a point which is approximately 40 to 50 metres from the intersection of 19 th Street and 87 meters from the point where S. lost control of the BMW; Mr.

A.'s speed before he slowed was in excess of 100 kph; he slowed his vehicle to only 65 -70 kph.; when he began to slow, he was no more than 2 seconds behind S. [ 41 ] Taking these factors into consideration, I find that Mr. A. did not abandon the race in a timely manner so as to severe the causal connection with the crash of S.'s BMW. The street race had continued for approximately 300 meters while Mr. A. accelerated to a speed in excess of 100 kph. His vehicle was directly beside S.'s vehicle for most of the street race and this encouraged S. to continue the race and to continue accelerating.

There was no timely communication by Mr. A. of his intention to abandon the race so that S. could also start to slow. [ 42 ] I find Mr. A. has failed to raise a reasonable doubt concerning the causal link between the street racing and the crash due to his slowing his vehicle just before the 19 th Street intersection. [ 43 ] The second submission of counsel for Mr. A. is that the accident was caused by some factor other than the street racing. Firstly, it is submitted that S.'s speed entering the corner was the primary cause of the accident. In support of this submission, counsel for Mr.

A. points to the evidence of the investigating police officers. S.'s speed entering the corner was just below, or perhaps even greater than, the critical speed at which the corner could be negotiated by any vehicle. Therefore, it is submitted, the crash was caused by S.'s error in judgment rather than the street race. [ 44 ] I find the speed of S. was a direct result of the street race with Mr. A. and this factor is a direct causal link between the crash and Mr. A.'s participation in the street race.

The two vehicles were so close together that S.'s speed entering the corner can only be seen as a result of the street race. The critical speed of the corner is not an intervening factor which raises a doubt concerning the connection between the crash and the street race. [ 45 ] Counsel for Mr. A. secondly points to the evidence showing S. was intoxicated by alcohol to an extent that his ability to operate a motor vehicle was impaired. Cst. Champer testified S. incorrectly steered to the left when he started to lose control of the BMW. Cst.

Lee testified S.'s level of intoxication would have impaired his ability to safely operate the vehicle. [ 46 ] I reject the submission that the impairment of S. and his incorrect steering of the BMW raise a doubt concerning the causal connection of the crash with the street racing. The evidence of all witnesses shows that S. was capable of operating his motor vehicle along Marine Drive without difficulty, albeit, in a dangerous manner. S.'s loss of control at the corner was primarily the result of excessive speed. As Hill, J. said in R v.

Menezes 2002 CanLII 49654 (ON SC) , [2002] OJ 551 at para 105 : "Where one of the race participants over-corrects in a curve at the excessive speed of the venture and loses control resulting in his own death, that consequence is a reasonable foreseeable result in the context of the hazardous course of conduct jointly undertaken and not simply and unconnected fortuitous or coincidental event." [ 47 ] In

summary, I reject the submissions of counsel for Mr. A. that the Crown has failed to prove beyond a reasonable doubt the causal connection between Mr. A.'s dangerous driving by participating in the street race and the death of Mr. Y. because of any of the following factors, whether considered singularly or in combination: the speed of S. exceeding the critical speed of the corner; the degree of impairment of S.; and S.'s error in steering the BMW. [ 48 ] I find Mr. A. guilty as charged in the Information of dangerous driving causing the death of Mr. Y. _________________________________ The Honourable W. J. Rodgers, P.C.J.