R. v. Foos, 2010 BCSC 1771

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Foos, 2010 BCSC 1771 Date: 20101126 Docket: 21456-2 Registry: Smithers Regina v. Cole Christopher Foos BAN ON PUBLICATION PURSUANT TO SECTION 517(1) C.C.C. BAN ON PUBLICATION PURSUANT TO SECTION 539(1) C.C.C. Before: The Honourable Madam Justice Koenigsberg Oral Reasons for Judgment Counsel for the Crown: G.R. Toews, Q.C. Counsel for the Accused: P.A. Smith-Gander Place and Date of Trial/Hearing: Smithers, B.C. November 26, 2010 Place and Date of Judgment: Smithers, B.C. November 26, 2010 [ 1 ] THE COURT: Cole Christopher Foos is charged with Count 1, dangerous operation of a motor vehicle under s. 249(1)(

a) and Count 2, possession of stolen property under s. 354(1) (

a) of the Criminal Code . [ 2 ] At the outset of trial, Mr. Foos admitted the facts which provided proof of Count 2 and he pleaded guilty to that charge. The trial of this matter then concerned whether Mr.

Foos is guilty of operating a motor vehicle in a manner dangerous to the public, having regard to all the circumstances, including the nature, condition, and use of the place at which the motor vehicle is being operated, and the amount of traffic that at the time is or might reasonably be expected to be at that place. [ 3 ] There is little dispute about the evidence in this matter, although the events leading to the charge took place in a matter of seconds, in a highly emotionally-charged atmosphere, and accuracy of recall, observation, and thus perception are not, on the part of any of the participants, entirely reliable. [ 4 ] I will make findings of fact on two bases: those which seem to be fairly certain and those most probable, given all the evidence. [ 5 ] I will deal with the legal tests and the issues to be decided.

The test for the actus reus and mens rea to establish guilt under s. 249(1)(

a) are well set out in several decisions, most recently in a 2008 decision of the Supreme Court of Canada, R. v. Beatty, 2008 SCC 5 , [2008] 1 S.C.R. 49. I paraphrase from that decision: The actus reus is driving in a manner that constitutes a marked departure from the norm.

There must be consciousness or a deliberate act in relation to the driving, but absent evidence of unconsciousness of the driving, as in sudden, unexplained onset illness or loss of consciousness, the act of driving is sufficient to constitute the actus reus . [ 6 ] The mens rea for this negligence-based criminal offence has been characterized as a blameworthy state of mind. As stated in Beatty , adopting its earlier decision in R. v.

Hundal , 1993 CanLII 120 (SCC) , [1993] 1 S.C.R. 867, a decision of the Supreme Court of Canada, at paragraph 33: … the requisite mens rea may only be found when there is a “marked departure” from the standard of care expected of a reasonable person in the circumstances of the accused. … In other words, it is a modified objective test. [ 7 ] I will set out the factual circumstances. Constable Mosley was on traffic patrol in Smithers, British Columbia, during the day of November 21, 2009. He received a dispatch over his radio to be on the lookout for a red Chevrolet truck with a specific licence number.

He formed the impression from the report that either the licence plate or the truck or both were stolen. He received a second report shortly after noon that the truck had been spotted in Houston, about an hour away from Smithers, heading towards Smithers on Highway 16. Constable Mosley drove to the rest area just to the east side of Highway 16 and just north of the bridge, which bridge is just south of Smithers. [ 8 ] He was not there long when he spotted what he thought was the truck. After the truck passed him, he noted the truck plate and believed that he had the suspect vehicle.

Approximately three cars passed Constable Mosley before he pulled out. He called for backup, because he considered this would be a high-risk takedown. Constable Oake and Constable Chamberlain answered the call and

both were within seconds of where Constable Mosley pulled over the truck by using his emergency lights and siren. [ 9 ] The truck was not speeding or otherwise exhibiting unlawful driving, and the pull-over was without incident. Constable Mosley parked his unmarked vehicle approximately 20 feet or so behind the truck, opened his door and drew his firearm, pointing it toward the truck. There is conflicting evidence about whether his gun was at the low ready or clearly pointing at the truck as he approached the truck, once the driver complied with the first command to put his hands out the window.

Constable Chamberlain, who attended the scene within a few seconds and observed Constable Mosley approach the vehicle, recalled that Constable Mosley's firearm was pointed at the vehicle, not in the low ready position. [ 10 ] Constable Oake was on scene before Constable Chamberlain. She parked her marked vehicle opposite to the driver door of the truck, but across the lanes from it, and came out of her vehicle. She observed the driver of the truck with his hands out of the window. She drew her firearm, as she observed Constable Mosley had drawn his.

Constable Mosley was speaking in a loud, commanding voice toward the driver, who again obeyed the command to open the driver door by putting his hand through the window frame and opening the door from the outside. [ 11 ] The driver was not able to obey the command to step out of the vehicle because his seat belt was on.

He yelled to the officer that he had his seat belt on, but Constable Mosley testified that he may have heard the words "seat belt", he knew the driver was saying something about a seat belt, but the words did not seem to take on their obvious meaning to him at that time. [ 12 ] During these few seconds, the driver had the following thoughts, following on his observations. He immediately realized, when he saw the officer with his gun drawn, that he had been stopped because of the stolen truck.

He began to be concerned about Constable Mosley's intentions when Constable Mosley continued to issue commands to him in a loud voice, and despite his immediate compliance and attempting to communicate by yelling that his seat belt was on. [ 13 ] Constable Mosley continued pointing his firearm in his direction and yelling. Thus, the driver formed an impression that perhaps the constable, as he put it, "wanted to shoot [his] ass off".

The driver was an American and not unacquainted with police officers and jail time, however, not for violent crime. [ 14 ] Constable Mosley and Constable Oake have different recall of exactly what happened between them the next few seconds. Constable Mosley does not recall asking Constable Oake to cover him while he went to the passenger side of the truck. He did recall he was told, before he did go there, that Constable Oake had told him that the suspect could not step out because of his seat belt.

They both agree that Constable Mosley was the lead in this takedown and that Constable Oake had a better view of the driver, as she had pulled her vehicle more or less even with the driver door of the truck, but across the meridian, as I have indicated. Constable Oake testified that she met Constable Mosley toward the rear of the truck and was asked to cover.

She heard Constable Mosley continue a loud command to the driver to step out, and she had noted that the seat belt was fastened and also gained the impression that, without moving his hands out of sight, the driver was trying to signal that his seat belt was on. [ 15 ] Constable Oake testified that she stood behind the driver door pillar which divided the driver window from the extended cab window, and bent down to make herself visible to Constable Mosley now on the passenger side of the vehicle, to tell him that the seat belt was on.

She testified that the driver looked both confused and worried and at some point had put his hands on his head. [ 16 ] Constable Oake was asked by Constable Mosley to unlock the passenger side door. She did so by leaning around the open driver door and pushing the button on the inside of that door to unlock the passenger side door. Constable Oake did not see Constable Mosley enter the passenger side door. Constable Oake resumed her position just behind or beside the pillar behind the driver seat, where she had a view of the driver, his hands and in part, across his body.

She could see the gearshift which was on the steering column. [ 17 ] I accept Constable Oake's recall of those few seconds because of the detail she gave and because Constable Mosley stated that he expected her to cover the driver on the driver side. However, he also testified that once he started around the passenger side, he did not know where Constable Oake was. He expressed surprise that she answered his request for her to unlock the passenger side door from the driver side door, approaching from behind the driver side door, rather, as he expected, from the windshield side of the open door.

He did know and expect his partner to be on the driver side, able to unlock the passenger side door from the driver door and able to cover the driver. [ 18 ] Once the passenger side door was unlocked, Constable Mosley moved his body partially into the passenger seat. His left foot was on the floor inside and his left buttock was on the seat. He gave a command or commands in a loud voice at this time, heard by Constable Oake and experienced by the driver, the accused. His firearm was pointed in the direction of the driver, however, he testified it was always at the low ready.

He also testified that he held it in his right hand across his mass. He demonstrated in the witness box by placing his hand with his fingers in an on-the-trigger or trigger-frame position across his mid-chest, above his waist and below his breast bone. It was quite visible to the driver and was, at various times, within two to four feet of the driver. [ 19 ] Constable Mosley's recollection of what he first observed as he looked in and entered the passenger seat was the driver's pocket knife on a clip on his right-waist area. He took the pocket knife off, but has no recollection of what he did with it.

There was no other weapon or firearm in sight. He also pushed the seat belt button to unfasten the buckle. He did not move the seat belt from across the shoulders however, and has no recollection that it came off by itself. He does recall issuing at least one more command to step out of the vehicle. [ 20 ] The motor was running throughout, although the truck was apparently in park. Constable Mosley did not turn off the ignition, although his left hand would have been within a few feet of it when he unfastened the seat belt and when he removed the pocket knife.

Throughout, up to this time, the driver had been completely compliant. [ 21 ] At this point, the driver suddenly pushed the gear out of park and into drive and slammed his foot on the gas. The back wheels began spinning and moved forward, spinning for about seven to eight metres, and then going into a roll as deceleration occurred. After the truck showed forward motion, Constable Mosley discharged his firearm directly at the driver five times. He hit the driver four times at very close range, the first bullet apparently hitting the driver's arm, which left the wheel.

[ 22 ] Constable Mosley testified that he shot until he felt the truck stop accelerating and that happened as the driver obviously moved his foot off the accelerator. The truck moved fairly slowly in an arc, from the shoulder where it started into the northbound lane and then curved to its right back onto the shoulder, coming slowly across the lip of the steep embankment and sliding or slumping into a ditch. [ 23 ] Constable Mosley was able to jump out of the truck before it came to the shoulder embankment and landed on his feet on the pavement.

Constable Mosley stated he had no choice or other option than to shoot the driver, because he feared death or bodily harm if he stayed in the car with a person speeding down the highway, perhaps needing to fight for his gun. He mentioned the possibility of being a hostage or of falling out of the speeding truck to his death or bodily harm.

He testified that he discharged his firearm until he felt that he had stopped the driver from continuing to drive. [ 24 ] The driver, in his statement given to the police in Vancouver shortly after his release from the hospital, which was put into evidence by the Crown, stated that he panicked when faced with a police officer in relation to whom he was completely compliant, but who entered into his car and waved a gun at him, yelling. There are at least three passages in the statement which bear on his state of mind when he puts the car in gear and steps on the gas.

The context of this part of his evidence in his statement is that he, the accused, is relating his story of trying to get to Alaska to begin a new life, and of having stolen the truck, which was his means eventually of getting to Alaska. [ 25 ] I will read those parts of his statement which are most relevant to his state of mind.

I begin at line 997: … I was thinkin man I'm gonna get there by the end of the week. … He is describing having left Salmon Arm. … And then your Officer, Smithers Officer or whatever pulled me over and as soon as I get pulled over I'm thinkin okay maybe noticed I'm speeding or somethin and then he opens his door and he pulls his gun out right away and I was like I got ratted on, he knows I'm in the truck, stolen truck. He's screamin at me to put my hands outside the vehicle. So I'm cooperative you know I'm not I'm not about to argue with cops when they're shaking guns at me and stuff.

So I put my hands outside the vehicle says, open the door I open the door from the outside he says get out of the vehicle. Got my seat belt on, I physically actually tried to get out of the vehicle, vehicle and yell at him that my, my seat belt is on, I can't get out without getting it off of course. And he comes up and he continues to scream at me to get out of the vehicle. And I repeat in a calm manner actually how I don't know if it's just the distance that he had and why he was yelling or he just wanted to shoot my ass.

But he gets up to the rear tires of the driver's side of the vehicle and you know traffic's blocked off on both lanes. You know then I ah see two other cop cars pull up and one of them's a female deputy and she walks up and she's now five, eight feet, ten feet maybe from straight across from my driver door. My door's open, my hands are out you know and he says cover me. Runs around the back of the vehicle, jumps in the vehicle with me, which I've never had, it scared the crap out of me. Takes my pocket knife from my (inaudible) hip wasn't goin for it nothin. You know my hands are up here the whole time.

Takes my pocket knife and he unlatched my seat belt shakin his gun right in my face scarin the living fucking piss out of me. And he says you're under arrest and ahhhhh, he kinda goes [off on] me. And I just freaked out, it made me panic. And I put the truck in drive stepped on the gas and I looked over at him and boom, boom, boom, boom, and I just fell into the backseat. … Then again at line 1489: He says, cover me, and runs around the back of the vehicle. Gets in the vehicle with me which starts scaring the crap out of me. And he's got his gun pointed at me the whole time.

And he takes my pocket knife and [that disappears], and unlatched my seat belt and he screams at me that I'm under arrest and that I need to get out of the vehicle and all I remember is like looking at him and the gun and … I don't know there's I just panicked. You know, like his re, his reaction to the situation overreaction to the situation caused me to panic and throw it in drive. Then again at 2169: I don't know if he was on steroids or what. The guy was ready to go, he was hopped up on whatever he was looking at for a reason to shoot my ass pretty much.

You know. [ 26 ] The facts I find specific to the circumstances in which the accused acted by putting the truck in gear and stepping on the gas are as follows: 1. The accused observes a police officer with gun drawn and approaching his vehicle with gun not at the low ready, but pointing at his vehicle. He already has complied with the command to put his hands out the window. He perceives the police officer to be particularly aggressive. 2. He is commanded to open his door. He complies. He is commanded to step out, and he cannot because of his seat belt.

He tries to communicate by words and some motion, "seat belt on". This does not seem to stop the commands. He is perceived to be confused and perhaps increasingly fearful by Constable Oake. He is aware that he should not in any way lower his hands to unbuckle his seat belt. 3. Constable Mosley instructs Constable Oake to cover the driver side and goes to the passenger side, after Constable Oake unlocks the driver side. Constable Mosley partially enters the truck with firearm drawn and pointing in the direction of the driver.

Constable Mosley testified that at all times his firearm was at the low ready, never pointing at the driver, until he made the decision to shoot him. The accused's statement was that Constable Mosley was yelling at him and shaking his gun in his face. I think it unlikely that Constable Mosley was shaking his firearm in the accused's face at the time. However, for the following three reasons, it is probable that advertently or inadvertently Constable Mosley did have his gun pointing above the low ready position and in the direction of the driver. (

a) Constable Mosley testified that while inside the vehicle he experienced the most severe tunnel vision he had yet experienced. The tunnel vision was, he acknowledged, the sensory response to physiological high stress and high alert, and in my view, indicating that this was a stressful experience. Constable Mosley also testified this was the only time in his approximately five-year career as an RCMP

officer that he had entered a suspect's vehicle with a drawn gun and the first time he ever discharged his firearm at a civilian. (

b) Constable Mosley had lost track of where his cover partner was, although he had to know she was somewhere on the driver side. This is, in my view, another piece of evidence that he was not calmly in control. (

c) He believed he had never had his gun at anywhere but the low ready position, but was observed by both the accused and Constable Chamberlain, his second backup, to have it above the low ready position and pointed at the truck as he approached the truck. Constable Mosley testified he held the gun pointed downward, in the low ready, but also demonstrated that it was held above his waist, across his mass, as he was partially seated in the car. Twice he moved his torso and arms across the passenger seat and the 18-inch space between the seats to remove the pocket knife and then to unfasten the seat belt.

He had no recollection of giving any commands, loud or otherwise, to the driver, but was heard to do so by Constable Oake and the accused. Thus, in my view, it is more likely than not that at some point before he made the decision to shoot the driver, that, the firearm was closer to and pointed at the driver than he believes it to have been. 4.

Constable Mosley, despite giving loud commands obviously heard by the driver, because there was immediate compliance, did not seem to comprehend the loud, and then accompanying motions of the driver regarding the seat belt, and leading to the accused's concerns and confusion about the motives of the police officer as in he seemed to, in the words of the accused, "want to shoot my ass off". [ 27 ] These then are the circumstances which must be considered in applying the tests for the determination of whether the Crown has proved, beyond a reasonable doubt, both the actus reus and the mens rea of the offence of dangerous driving.

Actus Reus [ 28 ] The words of the accused in his statement that he was conscious of putting the truck in gear and stepping on the accelerator are consistent only with knowing he was moving the vehicle. Although he also knew that traffic had been stopped, it was a fairly busy highway, the police officer was half in the vehicle, both doors were open and the intention of the accused was to flee in the face of his perceived situation.

There was potential danger to anyone in the area of a truck which might spin out of control, injuring the police officer or another vehicle. [ 29 ] In my view, the Crown has proved beyond a reasonable doubt that the driving of the vehicle, as occurred, was a marked departure from the standard of a reasonable person and was dangerous to the public. Mens Rea [ 30 ] The real issue in this trial revolves around mens rea .

I state at the outset that applying the law, as I understand it and as it is given to me, these facts and all of the evidence makes this case a very close call as to whether the Crown has proved beyond a reasonable doubt that the accused's conduct in putting the car in gear and slamming his foot on the gas was

an act that a reasonable person in similar circumstances might not have been aware of the risk and of the danger involved in that conduct. The only personal attributes of the accused relevant to this "reasonable person" analysis are incapacity to appreciate the risk or incapacity to avoid creating it. [ 31 ] Crown counsel rightly submitted that even accepting that the accused's act was irrational and done in a panic, that a clear reading of the case law demonstrates that panic is not a defence.

I agree with Crown counsel that just panic, without understanding the context for the panic or the reason for the panic or the extent of the panic is not a defence. There must be something more than just panic as a description. [ 32 ] Crown counsel also submitted that once

an act can be said to be deliberate, there is no defence. He relies in particular on the concurring reasons of Mr. Justice Fish in Beatty at para. 86 : In rare cases, the prosecution will be able to establish that the accused drove in a deliberately dangerous manner, within the meaning of s.249(1)(

a) of the Code . Where this can be shown, it will be [necessary [sic]] to establish, in addition, that the nature or degree of the appellant’s conduct represents a marked departure from the conduct of a reasonable person in similar circumstances. The decision of the accused to drive in a dangerous manner, like his awareness that he is doing so, amounts to subjective mens rea and not the volitional element of the actus reus .

It follows, in my respectful view, that a “marked departure” from the norm is not an invariable or essential characteristic of the actus reus of dangerous driving. [ 33 ] With respect, I do not read paragraph 86 in quite the same way as Crown counsel. The analysis of Mr. Justice Fish presumes that the act of the accused is a decision to drive in a dangerous manner with an awareness he is doing so. This, in my view, begs the question, this is the essential element of subjective mens rea , it is true, but this is not the same as deliberate, in the sense of being conscious of one's acts.

Here the very issue is whether, on all the evidence, the accused, as a result of the circumstances in which he was placed beyond his control, was deprived of the capacity to appreciate either the danger or the risk of putting the truck in gear and slamming on the gas. I find on the whole of the statement, corroborated in part by other evidence, that there is an evidentiary basis here for a fight or flight reaction, which I find, on the whole of the statement, is at least probable. [ 34 ] Up to the time the accused acted, he showed an awareness of the need to strictly comply with the commands.

He persisted in attempting to comply. Before he was stopped, he knew he had stolen the truck. He knew, when he was being pulled over, that it might be that he was caught and he knew for sure when the police officer crouched behind his door, gun drawn, that he was caught. He showed no signs of considering fleeing. In other words, he demonstrated an understanding and an awareness of the futility of trying to flee in such a situation.

That is, he acted rationally. [ 35 ] At all times he demonstrated what he stated; an understanding of the potential danger to himself of failing to comply with commands or even looking like he might not comply, particularly when those commands are made by a police officer holding a gun. He was clearly afraid of the firearm and of doing anything which might cause that firearm to go off while in his direction.

[ 36 ] Thus, one might consider and must consider the deliberation or rationality of this accused when he is faced with this firearm pointed in his direction by a perception and a reasonable perception of an agitated or aggressive police officer within a couple of feet of his head, and then deciding to step on the gas and drive the truck. [ 37 ] In my view, this accused in this situation cannot be said to have made a deliberate decision to drive at all, much less dangerously.

He reacted in the fight or flight sense, that is, instinctively to the perception of imminent harm from a firearm. [ 38 ] This of course does not end the analysis, for one must deal with the objective part of the analysis which is the most important part of the analysis. [ 39 ] The decision in Beatty provides valuable guidance for such an analysis. The facts in Beatty are significantly different from the facts here. In that case, the unexplained "momentary lapse" resulting in driving across the centreline of a highway at speed and hitting another car head on was the issue.

In that case it was a sudden, inexplicable, unconsciousness found to be not just, inattention, but either a falling asleep or other inexplicable loss of consciousness. Thus, even the actus reus was in question, simply because there was no consciousness at all in going across the centreline. That is not the case here however the analysis is broadly applicable.

I begin the quote at para. 37: [37] The underlying premise for finding fault based on objectively dangerous conduct that constitutes a marked departure from the norm is that a reasonable person in the position of the accused would have been aware of the risk posed by the manner of driving and would not have undertaken the activity. However, there will be circumstances where this underlying premise cannot be sustained because a reasonable person in the position of the accused would not have been aware of the risk or, alternatively, would not have been able to avoid creating the danger.

Of course, it is not open to the driver to simply say that he or she gave no thought to the manner of driving because the fault lies in the failure to bring to the dangerous activity the expected degree of thought and attention that it required. As Cory J. explained (at p. 885 of Hundal ): It would be a denial of common sense for a driver, whose conduct was objectively dangerous, to be acquitted on the ground that he was not thinking of his manner of driving at the time of the accident.

However, because the accused’s mental state is relevant in a criminal setting, the objective test must be modified to give the accused the benefit of any reasonable doubt about whether the reasonable person would have appreciated the risk or could and would have done something to avoid creating the danger.

On these occasions, even when the manner of driving viewed objectively will clearly be dangerous, the accused cannot be convicted. … Then at paras. 47-49, under a heading, "Determining the Mens Rea ": [47] In determining the question of mens rea , the court should consider the totality of the evidence, including evidence, if any, about the accused’s actual state of mind. As discussed at length above, the mens rea requirement for the offence of dangerous driving will be satisfied by applying a modified objective test.

This means that, unlike offences that can only be committed if the accused possesses a subjective form of mens rea , it is not necessary for the Crown to prove that the accused had a positive state of mind, such as intent, recklessness or wilful blindness. Of course, this does not mean that the actual state of mind of the accused is irrelevant.

For example, if proof is made that a driver purposely drove into the path of an oncoming vehicle in an intentionally dangerous manner for the purpose of scaring the passengers of that vehicle or impressing someone in his own vehicle with his bravado, the requirement of mens rea will easily be met. One way of looking at it is to say that the subjective mens rea of intentionally creating a danger for other users of the highway within the meaning of s. 249 of the Criminal Code constitutes a “marked departure” from the standard expected of a reasonably prudent driver.

Doherty J.A. similarly equates such deliberate action with a “marked and substantial” departure from the norm in the context of a criminal negligence charge in R. v. Willock , (2006), 2006 CanLII 20679 (ON CA) , 210 C.C.C. (3d) 60 (Ont.

C.A.), where he states, at para. 32: I think the appellant’s conduct during the two or three seconds in issue could only reasonably be said to constitute a marked and substantial departure from the conduct expected of a reasonable driver if the appellant deliberately jerked the steering wheel to cause the vehicle to swerve, presumably to either show off or frighten his young passengers.

If that finding was reasonably open on the evidence, then the appellant could properly have been convicted of criminal negligence, as he was unable to regain control of the vehicle before it crossed the median and collided with the westbound vehicle. As indicated, I read the trial judge as making that finding. With respect, I do not think that finding was reasonably available on the totality of the evidence.

I agree with the Chief Justice (at para. 75) that the analysis in Willock does not have the effect of imposing on the Crown the burden of proving the subjective intention of the accused in order to make out the offence. Doherty J.A. specifically held at para. 31 that “conduct occurring in a two to three second interval can amount to a marked departure from the standard of a reasonable person and demonstrate a wanton or reckless disregard for the life or safety of others”.

Doherty J.A. simply recognizes, as I do, that evidence about the actual intention of an accused is relevant to a court’s objective assessment of whether or not conduct constitutes a marked departure from the norm. [48] However, subjective mens rea of the kind I have just described need not be proven to make out the offence because the mischief Parliament sought to address in enacting s. 249 encompasses a wider range of behaviour. Therefore, while proof of subjective mens rea will clearly suffice, it is not essential.

In the case of negligence-based offences such as this one, doing the proscribed act with the absence of the appropriate mental state of care may instead suffice to constitute the requisite fault. The presence of objective mens rea is determined by assessing the dangerous conduct as against the standard expected of a reasonably prudent driver. If the dangerous conduct constitutes a “marked departure” from that norm, the offence will be made out. As stated earlier, what constitutes a “marked departure” from the standard expected of a reasonably prudent driver is a matter of degree.

The lack of care must be serious enough to merit punishment. There is no doubt that conduct occurring in a few seconds can constitute a marked departure from the standard of a reasonable person. Nonetheless, as Doherty J.A. aptly remarked in Willock , “conduct that occurs in such a brief timeframe in the course of driving, which is otherwise proper in all respects, is more suggestive of the civil rather than the criminal end of the negligence continuum” (para. 31). Although Willock concerned the offence of criminal negligence, an offence which is higher on the continuum of

negligent driving, this observation is equally apt with respect to the offence of dangerous operation of a motor vehicle. [49] If the conduct does not constitute a marked departure from the standard expected of a reasonably prudent driver, there is no need to pursue the analysis. The offence will not have been made out.

If, on the other hand, the trier of fact is convinced beyond a reasonable doubt that the objectively dangerous conduct constitutes a marked departure from the norm, the trier of fact must consider evidence about the actual state of mind of the accused, if any, to determine whether it raises a reasonable doubt about whether a reasonable person in the accused’s position would have been aware of the risk created by this conduct.

If there is no such evidence, the court may convict the accused. [ 40 ] Finally, the required inquiry is whether the Crown has proved, beyond a reasonable doubt that a reasonable person in the accused's position would have been aware of the risk created by this conduct, placing a reasonable person in a truck, pulled over for an arrest of a suspect for a stolen car. I assume the reasonable person in this position has just been pulled over for some reason, some reason which would justify approaching it with a firearm drawn, but I am not assuming that the reasonable person is a thief.

Nevertheless, the reasonable person is nervously aware of their vulnerability and does all he or she can to comply with demands. The demands continue and compliance does not seem to reduce the agitation and aggression of the police officer holding a gun pointed in the person's direction.

The reasonable person thus reasonably perceives an imminent threat from the firearm. [ 41 ] In this situation, can one say when the reasonable person reacts to the reasonably perceived imminent threat, that whatever the reaction is, it carries the capacity to assess the risk for danger to others of that reaction. [ 42 ] In my view, one can take judicial notice that reasonable persons in situations of peril, where control of the peril appears outside their ability, react in often irrational ways, in everything from paralysis to appropriate actions to completely wrong actions.

Instinctive reactions when one is not trained to recognize dangers and control one's fight or flight instinct are varied, unpredictable, and often irrational. [ 43 ] This situation in fact took place over a few seconds. The evidence at trial was that from the time of Constable Oake appearing on the scene in her automobile to the truck slumping into the ditch was 40 seconds. It was estimated that the actions inside the truck were altogether less than four seconds.

Is the reasonable person, in circumstances of the accused, who, reacts dangerously to perceived peril with a second or so to assess the situation to be said to be guilty of criminally blameworthy behaviour?

That is the question. [ 44 ] In the words of the majority in Beatty at para. 37 : [37] … the objective test must be modified to give the accused the benefit of any reasonable doubt about whether the reasonable person would have appreciated the risk or could and would have done something to avoid creating the danger. … [ 45 ] I find that the Crown has not proved beyond a reasonable doubt that a reasonable person in the circumstances of the accused would have appreciated the risk, having been deprived of rational, considered thought by actions beyond his or her control. [ 46 ] I find Cole Christopher Foos not guilty of dangerous driving. “Koenigsberg J.”