R. v. Theriault Date:, 2013 BCPC 385

Citation: R. v. Theriault Date: 20131115 2013 BCPC 0385 File No: 190934-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. GLEN EDWARD THERIAULT ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE P. DOHM Counsel for the Crown: W. Sayson, Q.C., D. Assonitis Counsel for the Defendant: M. Richards, R. Gill Place of Hearing: Surrey , B.C.

Dates of Hearing: July 22, 23, 24, 25, 29, September 17, 18, October 7, November 12, 2013 Date of Judgment: November 15, 2013 [ 1 ] THE COURT : The accused is charged with dangerous driving causing the death of Dietmar Karlheinz Neiss. The charge arises out of a motor-vehicle collision which occurred just after 5:30 in the morning on January 18th, 2011 at or near the 19800 block of 16th Avenue in Langley. [ 2 ] There is no dispute that in the seconds prior to the collision the accused was driving a dump truck towing a pup trailer westbound on 16th Avenue in the single eastbound lane of travel and Mr.

Neiss was driving a pickup truck eastbound in that same eastbound lane. At 200th Street, against a double solid yellow line, the accused had pulled out to pass two westbound vehicles travelling in the single westbound lane. He was in the process of doing so when the vehicles collided, essentially head-on, resulting in the immediate death of Mr. Neiss. The accused acknowledges his driving was objectively dangerous in the circumstances.

The main issue is whether the Crown has proven beyond a reasonable doubt that this driving by the accused was a marked departure from the standard of care which a reasonable person would have exercised in the circumstances. [ 3 ] As part of its case, the Crown attempted to link the accused to other driving behaviour which occurred on 16th Avenue prior to 200th Street. Five westbound drivers described a dump truck being driven aggressively at high rates of speed and passing vehicles over double solid yellow lines at various locations on 16th Avenue.

Several of these drivers were quite sure this dump truck was the same dump truck involved in the collision just past 200th Street. They are probably correct. [ 4 ] All five of these witnesses did their best to try to accurately and truthfully describe what they observed while driving westbound on 16th Avenue that morning. The difficulty is that despite considerable analysis and reflection, I find it is not logically possible to link their evidence together in some cohesive fashion, and I am not able to conclude whose evidence is more reliable on where and when this driving was observed.

As a result, I am not able to find to the criminal standard of proof that this was the same dump truck throughout. [ 5 ] The witnesses described observing this driving at very specific locations over a long stretch of roadway with several intersections for major north-south routes. There was little to no consistency in these locations among the witnesses, and there were periods of time when the dump truck disappeared from their views.

The order of the witnesses' vehicles, including the accused's dump truck as they approach 200th Street was well-established on the evidence but that order was not consistent with some of the passes by the dump truck observed by some of the witnesses prior to 200th Street. I had some reliability concerns with the evidence of these witnesses on their observations prior to 200th Street, but not to any significant degree and particularly not to the extent that I can conclude one or more of them are mistaken about where the dump truck drove in this manner.

It is certainly possible to conclude it was the accused's dump truck that was observed by these witnesses prior to 200th Street, but that would require me to conclude one or more of these witnesses are simply incorrect as to where they observed this driving by the dump truck. I find there is not any persuasive basis for me to do that in this case. It is much more likely than not it was the accused's dump truck observed by the witnesses throughout their travels on 16th Avenue; but that is not sufficient for me to be able to rely on this evidence in determining whether the Crown has met its burden in this case.

The charge will be decided on the basis of the evidence of the accused's driving commencing just prior to 200th Street. [ 6 ] 16th Avenue runs in an east-west direction. There is one travelling lane for each direction with left-turn lanes at the main intersections. As 16th Avenue approaches 200th Street from the east, it rises up out of Campbell Valley Park and flattens out just prior to 200th Street near where the left-turn lane to go southbound begins. This intersection is controlled by overhead traffic lights.

Both sides of this intersection on 16th Avenue commence with double solid yellow lines which expand into diagonally painted yellow islands representing raised medians to create left-turning lanes for vehicles to go north or south on 200th Street. On the west side this island returns to a double solid yellow line; with the exception of the left-turning lane there is one narrow lane of travel in each direction with shallow shoulders on both sides. Westward from 200th Street, 16th Avenue is a straight asphalt roadway.

It slopes downhill very slightly until approximately the 19800 block, where it drops quite quickly and steeply. Witnesses with experience driving this roadway describe how vehicles just "pop up" from the east for westbound drivers due to the nature of this topography. At this location the double solid yellow line changes to a dotted line for westbound traffic. After the decline, 16th Avenue flattens out and continues straight for some distance.

The posted speed limit through Campbell Valley Park and past the 19800 block of 16th Avenue is 50 kilometres per hour, although there was some evidence that vehicles tended to travel in excess of that limit once past 200th Street. [ 7 ] This area is described as rural residential. Large homes on big properties with driveways connecting to 16th Avenue line both sides of the roadway west of 200th Street. Overhead streetlamps light up the intersection at 16th Avenue and 200th Street but otherwise there is no lighting on 16th Avenue for half-a-kilometre west of 200th other than that provided by the residences.

Witnesses describe the area at the time the collision occurred as "very dark." Although there was some testimony that the roads were wet around the time of the collision, I am not able to conclude they were, nor that the weather or road conditions were a relevant circumstance in this case. [ 8 ] Traffic at the time of the collision was described generally as light but starting to increase, which is consistent with what could reasonably be expected.

The evidence established commuter and commercial vehicles began using 16th Avenue shortly after 5:00 a.m., with that traffic steadily and fairly quickly increasing from that time onward.

There was also evidence that some drivers drove aggressively on 16th Avenue. [ 9 ] While there were a few discrepancies in the witnesses' testimonies as to the accused's driving at issue in this case, I have resolved those discrepancies in accordance with the following factual conclusions: As the accused came up out of Campbell Valley Park on 16th Avenue and approached 200th Street, two vehicles were directly in front of him and two vehicles were behind him. The light was green for this westbound traffic so they did not need to slow down or stop.

They were all travelling in the 50 kilometre per hour range and the accused was "really close" to the vehicle directly in front of him. As soon

as the accused entered the intersection he steered his truck to the left in his attempt to pass the two vehicles ahead of him. As he exited the intersection his dump truck crossed over the double solid yellow line and moved into the eastbound left-turn lane. He continued in that direction across the painted median completely into the eastbound lane. He was accelerating to attempt to pass the vehicles that had been in front of him. He passed the first vehicle and was essentially parallel to the second vehicle when he saw Mr. Neiss' vehicle travelling towards him, also in the eastbound lane.

The accused applied his brakes and steered towards the south shoulder. Mr. Neiss also moved his vehicle in that direction and the two vehicles collided on the south shoulder near the crest of the decline approximately 300 metres from the intersection, in accordance with the collision reconstructionist's evidence. The force from the accused's dump truck caused Mr. Neiss' vehicle to be pushed essentially backwards approximately 23 metres from the area of impact.

The collision reconstructionist determined the accused's dump truck was travelling at a minimum speed of 60 kilometres per hour at the onset of his tire marks. This was a minimum speed, and as the reconstructionist qualified, it "does not account for the energy lost due to incipient skid, impact with (Mr. Neiss' vehicle), utility pole and manhole, or the use of non-ABS drag factor in the calculation." (Conclusion 6 of his report, page 17).

The driver of the vehicle first through the intersection estimated he was accelerating close to 60 kilometres per hour and he assumed the dump truck was travelling significantly faster than he was. This witness also testified that the accused's dump truck was just slightly behind or even with him just before the first driveway on the south side which was approximately 250 metres from the 200th Street intersection. The accused was obviously accelerating in order to pass the two vehicles in the westbound lane and within that distance he had passed the first vehicle and was even with the second vehicle.

To accomplish that, he had to have been travelling well in excess of 60 kilometres per hour. When I consider and weigh the evidence on the speed of the accused's dump truck, I find it was approaching or exceeding 75 to 80 kilometres per hour when the accused first saw Mr. Neiss' vehicle directly ahead of him in the eastbound lane. [ 10 ] As previously noted, the accused quite properly concedes the actus reus of the offence has been proven beyond a reasonable doubt.

Viewed objectively, his driving was clearly dangerous to the public in all the circumstances. [ 11 ] The accused submits a reasonable doubt exists on the mens rea of the charge, which focuses "on whether the dangerous manner of driving was a result of a marked departure from the standard of care which a reasonable person would have exercised in the same circumstances." ( R. v. Roy, 2012 SCC 26 at para. 36 ) The accused places considerable reliance on two sources of evidence in support of his submission. The first is an utterance he made to a police officer following his arrest.

The second is video and photographic evidence recently taken by the collision reconstructionist purporting to capture the accused's westbound view down 16th Avenue from the 200th Street intersection in similar conditions of darkness.

The accused argues this evidence raises a reasonable doubt on the basis of a mistake of fact, that being the accused honestly but mistakenly believed the roadway ahead was clear when he attempted to pass the two vehicles. [ 12 ] The utterance relied on by the accused is, "I thought it was clear to pass and I did not see the vehicle on approach." The initial issue I must address is what weight, if any, can I place on this statement? [ 13 ] I note first of all that it was made approximately three hours after the collision when the accused was being released from custody by the arresting officer.

Accordingly, it cannot be said this was a spontaneous or res gestae type utterance which could provide some circumstantial assurance of trustworthiness, but rather one for which there was considerable time for reflection and contemplation. [ 14 ] Second, given the scene evidence, the accused had to have known he had driven unlawfully and that driving had resulted in another person's death. As such, there would be an almost natural tendency in him to look for answers and offer possible explanations, including ones that would tend to minimize his culpability for his actions.

It is also significant the utterance was simply blurted out to a police officer investigating the matter to which the utterance specifically related. [ 15 ] Third, the statement itself demonstrates uncertainty as to its reliability.

The accused said he thought it was clear, not that it was clear. [ 16 ] Fourth, the utterance has not been tested through cross-examination, the hallmark of our legal adversarial system for testing the reliability of evidence. [ 17 ] Fifth, given my factual conclusions and the video evidence from the collision reconstructionist, it is very difficult to understand how the accused could have believed it was clear to pass. He would not have had a good opportunity to look down 16th Avenue until just prior to the 200th Street intersection and he began to make his pass while in that intersection.

As a result, he only had a few seconds at most, in darkness, to check to see if it was clear. There was no evidence the accused was familiar with this roadway so it cannot be logically suggested he only needed a few seconds to see if it was clear. As well, based mainly on some lighting features, the video evidence tends to show the roadway continues straight from 200th Street for a considerable distance. However, it does not reveal much of the actual roadway beyond the intersection other than that captured by the vehicle's headlights.

More importantly in my view, there are two very distinctive features to this video evidence. The first is how dark the westbound viewpoint from 200th Street appears. That obviously impacts the ability to see. The second is the presence of what appears to be two sets of eastbound headlights. These lights are in fact four overhead streetlights spread out between 500 and 1200 metres from the 200th Street intersection. However, from 200th Street they clearly appear to be two sets of headlights from vehicles proceeding eastbound on 16th Avenue.

Moreover, these lights present as though they are not that far down the road from 200th Street.

When I consider all this evidence I find there is very little factually to support the accused's utterance whereas there is compelling evidence which seriously challenges its reliability. [ 18 ] Lastly, there is not really anything of a substantial nature I can point to which enhances the overall trustworthiness of this utterance. [ 19 ] Given all these concerns I have identified with the reliability of this utterance by the accused, I find that I simply cannot attach any weight to it. [ 20 ] In his submissions, the accused also placed some reliance on his statements to the officer to the effect that he "made a bad three- second decision." As counsel have argued, these utterances could be interpreted as supporting both a momentary lapse of judgment and the subjective mens rea for dangerous driving.

I have not been able to identify any basis to conclude one

interpretation should be

accepted over the other. Accordingly, I am not able to give any weight to these utterances, as well. [ 21 ] I would add that I have also determined that no reliance will be placed on any of the remaining utterances attributed to the accused. To be clear, I have decided this case without regard to any of the accused's statements found admissible in my voir dire ruling. [ 22 ] It follows from these conclusions that there is effectively no evidence from the accused upon which to base his mistake of fact or honest but mistaken belief defence.

Accordingly, it does not raise any reasonable doubt as to the accused's guilt on this charge. [ 23 ] With regard to deciding whether the Crown has proven the mens rea of the charge beyond a reasonable doubt, I am directed to approach the issue by answering two questions. The "first is whether, in light of all the relevant evidence, a reasonable person would have foreseen the risk and taken steps to avoid it if possible.

If so, the second question is whether the accused's failure to foresee the risk and take steps to avoid it, if possible, was a marked departure from the standard of care expected of a reasonable person in the accused's circumstances." ( Roy , supra , at para. 36 ). [ 24 ] Evidence relevant to these inquiries includes the following: 1. The vehicle the accused was driving. A dump towing a pup trailer is a large, heavy, long vehicle. As such, it is considerably less manoeuvrable than most vehicles.

It requires a greater distance to pass other traffic and given its size in comparison to most vehicles, it has a greater likelihood of causing serious harm and damage to others if involved in a collision. 2. The traffic and roadway. The accused's decision to pass in these circumstances put not just eastbound traffic like Mr. Neiss at risk, it also put the vehicles he was passing and to a lesser extent the ones behind him at risk. Moreover, although traffic was light the accused's driving occurred at a time when traffic was starting to increase.

As well, there were driveways to residences on both sides of 16th Avenue from which vehicles could emerge and the roadway was narrow, with only one safe avenue to escape from a pass in this location. 3. The speed of the accused's vehicle. The posted speed limit was 50 kilometres per hour. The accused's driving resulted in his speed increasing well beyond that limit. The greater the speed the higher the risk to other users of the roadway. 4. The accused's attempt to pass on a double solid yellow line.

Those lines indicate to a driver that passing is not permissible because it is unsafe and risky to do so, even though that may not be readily apparent. The fact there was not a sign for westbound traffic advising of the upcoming decline is immaterial. The double solid yellow line served that purpose in this case. The accused chose to ignore it. 5. The darkness at the time.

Although a driver may have perceived from 200th Street that 16th Avenue continued straight for some distance, the absence of lighting past the intersection, and more particularly the considerable darkness down 16th Avenue would have resulted in a driver not being able to see the actual roadway, including its topography, beyond the reach of the vehicle's headlights. The darkness would have significantly reduced the driver's visibility, and also as noted by the collision reconstructionist, lengthened his reaction times, both of which increase that driver's risk to other users of the roadway. 6.

The opportunity to observe . As previously discussed, the accused would have had only a brief opportunity to observe the roadway ahead of him, given the risky driving he undertook. [ 25 ] When I consider the evidence I have no doubt a reasonable person would have foreseen the obvious risks created by the accused's dangerous manner of driving in these circumstances. A reasonably prudent driver would never have attempted to pass at that location, in that limited visibility and in that vehicle.

They would have waited at a minimum until there was no longer a double solid yellow line, which was only a short distance down the road, and they had a good opportunity to observe to ensure it was clear and safe to pass another vehicle. [ 26 ] I also have no doubt that the accused's failure to foresee the risks and take steps to avoid them was a marked departure from the standard of care expected of a reasonable person in the accused's circumstances.

The accused made a conscious, deliberate, risky decision to attempt to pass two vehicles ahead of him by driving his dump truck and pup trailer over a double solid yellow line and completely into the oncoming lane of traffic while accelerating to a speed well in excess of the speed limit, all on a very dark, narrow, single lane roadway. These circumstances are not at all akin to the driver who suddenly and unexpectedly crosses a double solid yellow line or has a momentary lapse of attention. The accused's situation is far from that.

In my view, the accused's driving can only be characterized as a marked departure from the standard of care which a reasonable person would have exercised in the circumstances.

No reasonably prudent driver would even consider driving in the manner the accused did in this case, and the accused's decision to do so is so far removed from what a reasonable person would do in the circumstances so as to constitute that marked departure. [ 27 ] Moreover, when I also factor in the video evidence pertaining to the appearance of apparent eastbound headlights in the accused's westbound viewpoint from the 200th Street intersection, I find the evidence proves beyond a reasonable doubt subjective mens rea , that is, the accused deliberately drove dangerously.

That evidence, when combined with the other evidence which the accused had

knowledge of, establishes the accused drove in the manner he did, aware of apparent oncoming traffic. In my view, this video evidence evinces no other conclusion except that two sets of headlights from not very far down the road appear to be travelling towards 200th Street obviously in the eastbound lane. Those lights are immediately obvious, so the only way the accused could not have seen them is if he did not look at all, in which case subjective mens rea would also have been established.

Based on all the evidence, I find the accused deliberately drove his vehicle in a dangerous manner. [ 28 ] The Crown has proven all the essential elements of the charge beyond a reasonable doubt, and accordingly I find the accused guilty. (REASONS FOR JUDGMENT CONCLUDED)