R. v. Traverse, 2017 BCSC 153

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Traverse, 2017 BCSC 153 Date: 20170113 Docket: 44217-2 Registry: Prince George Regina v. William Lionel Traverse Before: The Honourable Mr. Justice Tindale Oral Reasons for Judgment Counsel for the Crown: R. Ross Counsel for the Defence: J.C. LeBlond Place and Dates of Trial: Prince George, B.C. January 9, 10, 11, 12 and 13, 2017 Place and Date of Judgment: Prince George, B.C.

January 13, 2017 [ 1 ] THE COURT: William Traverse is charged on Indictment 44217-2 with the following single count: Count 1: William Lionel Traverse, on or about August 15, 2014, at or near Fort St. James, in the Province of British Columbia, did commit aggravated assault of Andrew Charles Smith, contrary to s. 268(2) of the Criminal Code . Background [ 2 ] This allegation arises out of an incident that occurred at approximately 3:30 p.m. on August 15, 2014, on Stuart Drive East, in the Village of Fort St. James, when a Dodge Caliber vehicle driven by the accused struck Andrew Smith and seriously injured him.

Issue [ 3 ] The issue on this trial is whether or not Mr. Traverse intentionally struck Mr. Smith with his motor vehicle. Evidence [ 4 ] Exhibit 1 in this proceeding is an admission of facts made by the accused. The accused has admitted, among other things, that Mr. Smith sustained a fracture in two places on his right lower leg, his right ankle was completely internally rotated, and he received a large bruise and abrasion on his right elbow on the date in question. [ 5 ] In addition, the accused admitted that the 2009 Dodge Caliber which he was driving was found to be mechanically sound. Crown’s Case Sgt.

Sven Nielsen [ 6 ] Sergeant Nielsen is a member of the RCMP and was stationed in Fort St. James on August 15, 2014. At approximately 3:48 p.m., he received a dispatch of a complaint of a pedestrian/motor vehicle accident on Stuart Drive East in Fort St. James. [ 7 ] Sergeant Nielsen testified that Stuart Drive East is a two-lane road which was newly paved on August 15, 2014. The road terminates at the hospital in Fort St. James. [ 8 ] Upon attending at the scene, Sergeant Nielsen noted a red Dodge Caliber vehicle stopped and pointing westbound on Stuart Drive East.

He noted that the windshield of that vehicle was broken and pushed in. There was also damage to the passenger side of the vehicle. [ 9 ] Sergeant Nielsen testified that Andrew Smith was lying on the ground when he attended upon him, and he noted that his leg was clearly broken. Mr. Filewood was next to Mr. Smith. [ 10 ] Sergeant Nielsen noted a water bottle off the driver's side of the Dodge Caliber vehicle lying on the road, which was approximately one-third full of water. Sergeant Nielsen seized this water bottle, which has been marked as Exhibit 3 in this proceeding.

[ 11 ] Sergeant Nielsen also testified that the accused was pacing on the far side of the road. [ 12 ] Sergeant Nielsen agreed that there were not any lines painted on Stuart Drive East on August 15, 2014. Andrew Smith [ 13 ] Andrew Smith testified that he is currently 49 years of age and lives in Mackenzie, British Columbia. He is a heavy equipment operator who used to live in Fort St. James. At the time, he was living in Fort St. James with his partner, Catherine Traverse. Ms. Traverse is the ex-wife of the accused. [ 14 ] Mr. Smith was living in an apartment building on Stuart Drive East on August 15, 2014.

At approximately 4:00 p.m., he was packing up items into his truck to go camping for the weekend. His truck was parked in the parking lot of his apartment building. Mr. Smith's truck was in the last parking spot before the street. [ 15 ] Mr. Smith testified that, as he was packing items into his truck, he saw the accused drive up Stuart Drive and he hollered something at him -- that is the accused hollered at Mr. Smith. The accused was driving a red Dodge Caliber. Mr. Smith had met the accused approximately six months earlier, when he attended with Ms.

Traverse to pick up some of her belongings from the accused's home. [ 16 ] Mr. Smith testified that the accused on a previous occasion had yelled at him and made crude gestures towards him. [ 17 ] Mr. Smith testified that on the date in question, the accused yelled something to the effect that "did he like Cialis?" [ 18 ] Mr. Smith testified that he put his items into the truck and then noticed that the accused was coming back down the street, so he walked towards the street to see what he wanted. Mr.

Smith believed that the accused was travelling at approximately 50 kilometres an hour. [ 19 ] He walked to the end of the parking lot. Mr. Smith said that he had nothing in his hands and, as he got closer to the road, he mouthed the words, "what do you want?" towards the accused, and raised his hands over his head. [ 20 ] Mr. Smith testified that he was standing in the driveway entrance to the parking lot of his apartment building and he said he thought the accused was going to parallel park on the street. The accused started to turn in and pointed his vehicle towards Mr.

Smith, sped up, and ran into him. [ 21 ] Mr. Smith leapt to the left and was hit on his right leg by the vehicle driven by the accused. The right passenger side of the vehicle hit his right lower leg. Mr. Smith testified that he flipped into the air and landed on the windshield of the Dodge Caliber. He then rolled off the vehicle, landing on the sidewalk or close to it. [ 22 ] Mr. Smith testified that as he lay on the sidewalk, the accused walked up to him and said, "you broke my windshield, asshole". [ 23 ] Mr.

Smith testified that the bone was sticking out of his right leg and he had road rash on his legs and arms. [ 24 ] Mr. Smith was attended to by ambulance personnel and taken to the Stuart Lake Hospital. After that he was transported to the hospital in Prince George. Mr. Smith had two surgeries on his leg. [ 25 ] Mr. Smith reviewed a number of photographs which form part of Exhibit 2A. He testified that it was his hat in photograph 18, and a water bottle can be seen in photograph 15. Mr.

Smith testified that he had a water bottle in his pocket of his shorts which was approximately half full at the time of the collision. [ 26 ] Mr. Smith, on cross-examination, testified that he buys water by the case and likely had a case in his truck. He was certain that he heard the word “Cialis” come from the accused as he drove by him. [ 27 ] Mr. Smith, in cross-examination, said that he walked to the end of the driveway and remembers landing on the windshield of the accused's vehicle. He also believes that the accused was revving the vehicle at the time he was hit. Mr.

Smith denied that he was going down to the road to exchange harsh words with the accused. [ 28 ] Mr. Smith denied that he threw a water bottle at the windshield of the vehicle being driven by the accused. [ 29 ] Mr. Smith was cross-examined as to previous statements given to the police and at the preliminary inquiry of this matter, where he testified that he was on the sidewalk when the impact occurred. Mr. Smith said, on cross-examination, that he was standing right where the sidewalk turns into the parking lot access to his apartment.

Catherine Traverse [ 30 ] Catherine Traverse is 29 years of age and currently lives in Mackenzie with Mr. Smith. She married the accused in November 2010 and they separated in February 2014. [ 31 ] Ms. Traverse testified that she immediately began to live with Mr. Smith after she separated from the accused. Shortly after the separation, she attended at the residence of the accused with Mr. Smith to pick up some of her belongings. She says the accused and Mr. Smith shook hands at that meeting; however, as she was leaving with Mr.

Smith, the accused made a rude gesture to her which she described as the accused putting two fingers to his mouth and sticking his tongue out between his fingers. [ 32 ] Ms. Traverse also testified that on a few occasions, when she and Mr. Smith were in Fort St. James, the accused would yell things at them as he drove by, and on Canada Day in 2014, they saw the accused at the park. The accused said to Mr. Smith that “bankruptcy must be fun”.

[ 33 ] Ms. Traverse testified that on August 15, 2014, she and Mr. Smith were getting ready to go camping. She was in her apartment preparing food when the landlord came to the door and told her that she needed to go see Mr. Smith. Upon going down to the roadway, she noted Mr. Smith was lying partly on the road and the sidewalk, and that he was badly injured. Ms. Traverse also testified that the red Dodge Caliber owned by the accused was parked in front of the driveway to her apartment. She saw the accused standing across the street.

Miles Filewood [ 34 ] Miles Filewood testified that he is 25 years of age and currently resides in Fort St. James, British Columbia. He lives in the bottom apartment on Stuart Drive East. On August 15, 2014, he heard shouting and then saw a man on the ground and another man near the person on the ground. [ 35 ] Mr. Filewood testified that he went to see if he could help the man on the ground and noted that he had a badly broken leg. The injured man was on the sidewalk, and there was a vehicle in the vicinity.

He noted that there was damage to the passenger side mirror and that the windshield may have been damaged on that vehicle. [ 36 ] Mr. Filewood noted that the injured man and the other man were arguing with each other. He could not say what they were saying to each other. He noted that there was a bottle on the road which was close to the man that was on sidewalk. [ 37 ] On cross-examination, Mr. Filewood agreed that he had given a statement to the police in which he told the police that the driver of the vehicle had said that the injured man had thrown a water bottle at his car.

Corporal Scott Wessell [ 38 ] Corporal Wessell was called as an expert witness in integrated collision analysis and accident reconstruction. His report has been marked as Exhibit 5. [ 39 ] Corporal Wessell testified that he did not attend the scene on Stuart Drive East, and that he based his opinion on copies of photographs of the scene and the accused's vehicle that he was provided. [ 40 ] Corporal Wessell opined in his report that the area of impact for the collision was in the westbound lane of Stuart Drive East at Mark C, which is an area that is illustrated in the photograph at page 14 of Exhibit 5.

Mark C is a scrub or smear mark consistent with a sliding tire; however the scratches and blue colour within the mark were not consistent with a sliding tire but rather another object being between the tire and the roadway. He felt that this mark was likely caused by contact with a shoe or fabric, on the shoe of Mr.

Smith. [ 41 ] Corporal Wessell opined that there was insufficient evidence to conduct a speed analysis or to determine the cause of the collision. [ 42 ] Corporal Wessell, from his review of the photographs that he was provided and those in Exhibit 2A, noted that there was a crack on the windshield of the red Dodge Caliber which was radiating outwards. He testified that there was no physical evidence of contact on the hood of the red Dodge Caliber by a pedestrian.

He opined that the damage to the red Dodge Caliber was inconsistent with a pedestrian being on the hood of that vehicle. [ 43 ] Corporal Wessell opined that the red Dodge Caliber was steering to the right when the brakes were applied and then steered back to the left. [ 44 ] Corporal Wessell agreed on cross-examination that the damage to the windshield started at a fairly localized fracture site and then radiated out from that site.

He also agreed that there were “cleaning marks” on the right rear door of the vehicle which could have been caused by a pedestrian falling to the ground. [ 45 ] Corporal Wessell agreed on cross-examination that the damage to the windshield of the red Dodge Caliber was not consistent with pedestrian contact. He could not say either way whether or not an object was thrown at the windshield. He did agree that the red Dodge Caliber was braking prior to collision. Constable Andre Sanchez-Flores [ 46 ] Constable Sanchez-Flores was dispatched to the accident scene on August 15, 2014.

At that time, he was tasked with attending at the hospital in Fort St. James to interview Mr. Smith. He ultimately was unable to do that, given the condition of Mr. Smith. [ 47 ] He later attended at the residence of Mr. Smith, at which time he took photographs of the injuries of Mr. Smith. Statement of the Accused [ 48 ] Crown applied for a ruling that the statement taken by the police from the accused on August 15, 2014, while he was in custody, was admissible for the purpose of cross-examination.

After a voir dire , I ruled that the statement was admissible and could be used for the purpose of cross-examination of the accused. Defence Case William Traverse [ 49 ] The accused testified that he is 50 years of age and has been living in Fort St. James since 1997. He has been employed at Apollo Forest Products since approximately the same time.

[ 50 ] The accused and his ex-wife, Catherine Traverse, moved in together in 2010, and separated in February 2014. [ 51 ] The accused testified that by April 23, 2014, he and Ms. Traverse had signed a separation agreement. [ 52 ] The accused testified that on August 15, 2014, his 12-year-old daughter was visiting him from Newfoundland, as well as his mother. His daughter was playing with some of her friends and at approximately 3:00 or 3:15 p.m., he gave his daughter and her friends a ride to a park located at the David Hoy Elementary School.

He testified that he was going to meet a friend at 3:30 p.m., who was going to install a fuse in his car. The accused decided, after dropping off his daughter, that he had approximately 15 minutes to kill and he decided to go for a drive. He drove up Stuart Drive East, past the apartment that he knew Mr. Smith and Ms. Traverse resided in. He testified that he often drove that route with an elderly friend of his when they were just out for a drive. [ 53 ] The accused said he drove past the apartment where Mr. Smith lived and he saw Mr. Smith going towards his pickup truck.

He estimated he was approximately 70 to 80 feet away from Mr. Smith. The accused agreed that he made eye contact with Mr. Smith; however, he proceeded to drive up the hill to the hospital and then turn around. After rearranging some papers in his glove box, he proceeded down the hill towards town. [ 54 ] The accused testified that he was travelling at approximately 50 kilometres an hour. He then saw Mr. Smith and took his foot off the gas pedal and put it near the brake as he observed Mr. Smith walking towards him. The accused testified that it appeared Mr.

Smith had something in his right hand, but he could not see what it was as he kept his arm down. [ 55 ] The accused testified that, as he approached Mr. Smith, he was trying to slow down and he observed Mr. Smith take a step, or a step and a half, and then make a throwing motion at him. Something then struck his vehicle. The accused testified that he ducked and tilted his head towards the right. When the object struck his windshield, the windshield cracked. The accused testified that he was braking before the object was thrown at him by Mr. Smith. The accused thought that his passenger side mirror hit Mr.

Smith, but he did not believe Mr. Smith was seriously injured at that point. [ 56 ] The accused testified that after the collision, he sat back up and parked his car in the access road to the apartment building. He then went back to check on Mr.

Smith, who was on the ground. [ 57 ] The accused testified that he saw a water bottle on the road after the collision and that he did not touch the water bottle. [ 58 ] The accused also took pictures of the accident scene and, after his car was released by the RCMP, he took pictures of his car. [ 59 ] In cross-examination, the accused testified that he dropped his daughter off at the park at approximately 3:10 or 3:15 p.m. and that he was going to go to the Petro Canada gas station to put air in his tire, and perhaps wash his car if he had time.

He also agreed that he needed to be home by 3:30 p.m. to meet his friend. [ 60 ] The accused testified that when he came to the intersection of Stuart Drive and the highway, he could turn right to the Petro Canada station, however, he went straight which is the direction where Mr. Smith and Ms. Traverse lived. [ 61 ] The accused agreed that he had a confrontation with Mr. Smith prior to August 15, 2014. He testified that when Ms. Traverse came to his home to pick up some of her belongings, that Mr.

Smith threatened him, and as a result of that threat, he called the police. [ 62 ] The accused also agreed that on Canada Day he did say to Mr. Smith "enjoy your bankruptcy". [ 63 ] The accused disagreed that he ever made any rude gestures towards either Mr. Smith or Ms. Traverse. [ 64 ] The accused agreed on cross-examination that he was apprehensive when he saw Mr. Smith coming towards his vehicle as he was not sure what he had in his hand. [ 65 ] The accused denied intentionally trying to hit Mr.

Smith, and testified that he did not even realize he turned to the right when the bottle of water was thrown on his car. The accused testified he was braking hard prior to the collision. Gerald Sdoutz [ 66 ] Gerald Sdoutz was qualified as an expert in accident reconstruction as well as determining impact location, speed determination, and motor vehicle/pedestrian interactions. He is a mechanical engineer with a professional engineer designation. Exhibit 7 is a report that he prepared for this matter. [ 67 ] Mr.

Sdoutz also did not attend the accident scene and based his opinions primarily on the photographs of the accident scene that he was provided, as well as a report to Crown counsel prepared by the RCMP. [ 68 ] Mr.

Sdoutz, in Exhibit 7, came to the following conclusions: (1) at impact, the pedestrian's right side was facing the westbound Dodge Caliber; (2) the impact occurred between the Caliber's right front wheel and the pedestrian's lower right leg, as well as the Caliber's right passenger side view mirror and the pedestrian's right elbow; (3) the pedestrian’s right foot was about 40 centimetres into the roadway from the northern sidewalk at the point of impact; (4) the damage pattern to the Caliber's windshield from the impact with the water bottle suggests that the water bottle was thrown from directly ahead of the Caliber's path -- the pedestrian may therefore have been further into the roadway and was travelling back towards the sidewalk when the collision occurred;

(5) prior to the collision, the Caliber was braking at maximum while being swerved to the right, towards the sidewalk; (6) at no time did the Caliber enter into the sidewalk itself; and (7) it was estimated that, at maximum, the Caliber was travelling at 46 kilometres per hour at the start of the tire marks. [ 69 ] Mr. Sdoutz testified that there was no evidence that Mr. Smith went up over the hood or impacted with the windshield of the Dodge Caliber. He opined that the fracture pattern of the windshield is consistent with an object being thrown directly at the windshield.

He opined that the damage was consistent with a water bottle striking the windshield; however, agreed that the water bottle would have to have had some water in it. Mr. Sdoutz opined that the point of impact was approximately 40 centimetres from the sidewalk. I will note that both of the experts agreed that the bluish mark on the road, which Corporal Wessell referred to as Mark C in his report, was the point of impact. [ 70 ] Mr. Sdoutz also opined that the red Dodge Caliber was braking fully prior to the collision. [ 71 ] On cross-examination, Mr.

Sdoutz agreed that the red Dodge Caliber could have been pointing towards the sidewalk when the object was thrown at the windshield if Mr. Smith was standing at ninety degrees in relationship to the vehicle. [ 72 ] He also agreed in cross-examination that the vehicle, while braking, was steered to the right for the entire time leading up to the impact and then steered to the left. Position of the Parties Defence [ 73 ] The accused argues that the single issue in this case is whether or not he intentionally applied force to Andrew Smith.

He notes that he was not charged with any other driving offences, such as dangerous driving. [ 74 ] The accused argues that both experts agree on a number of aspects of this case, which include the point of impact and the fact that there is no evidence that Mr. Smith contacted the hood or windshield of the vehicle. Mr. Sdoutz opined that it was likely an object thrown at the windshield that caused the damage and that this damage is consistent with a water bottle being thrown at the windshield. [ 75 ] The accused argues that Mr. Smith either gave false evidence or was mistaken in a number of areas.

First of all, the evidence does not support the fact that he struck the windshield of the Dodge Caliber with his body. The evidence also does not support Mr. Smith's initial statement to the RCMP and his evidence at the preliminary inquiry that he was on the sidewalk when he was hit. The physical evidence and evidence of the experts is that the red Dodge Caliber was braking prior to the collision; however Mr.

Smith testified that the accused was accelerating at him. [ 76 ] The accused argues that his evidence was given in a straightforward and detailed manner and is consistent with the physical evidence and opinions of both experts. Crown [ 77 ] The Crown argues that they have proven the case against the accused beyond a reasonable doubt.

The Crown agrees that issues of credibility apply to the analysis in this case. [ 78 ] The Crown argues that the accused was mistaken in his belief that he did not turn to the right prior to the collision, which is the opinion of both experts. [ 79 ] The Crown argues that it is not reasonable for the accused to testify that he thought Mr. Smith might have a gun or wrench in his hand and not try to steer to the left and try to avoid him. [ 80 ] The Crown argues that there was animosity between the accused and Mr.

Smith prior to this incident and that the explanation as to why the accused drove past the residence of Mr. Smith on that day does not make any sense. The Crown argues that the accused held animosity towards Mr. Smith and drove there on that occasion for the purpose of confronting him. Decision [ 81 ] The accused is charged with a single count of aggravated assault pursuant to s. 268(2) of the Criminal Code . A useful definition of aggravated assault can be found in R. v.

McConnell , 2014 BCSC 973 , at paragraph 8 , which reads as follows: Any intentional application of force -- even relatively minor force -- without the consent of the victim is an assault unless some defence applies.

Aggravated assault is transformed from simple assault by three additional elements: the assault wounded, maimed or endangered life; the appellant's conduct caused the wounding, maiming or endangerment; and a reasonable person would have realized the appellant's conduct would subject the victim to the risk of bodily harm. [ 82 ] The Crown has proven beyond a reasonable doubt that the accused was driving the red Dodge Caliber that struck Mr. Smith on August 15, 2014. The Crown has also proven beyond a reasonable doubt that the injuries sustained by Mr.

Smith are serious and can be characterized as wounding or maiming him. [ 83 ] The issue, as I have said before in this trial, is whether or not the accused intentionally drove his vehicle into Mr. Smith and thereby intentionally applied force to him. [ 84 ] Credibility is also an issue in this case. I may accept all of a witness's evidence, I may accept none of a witness's evidence, or I may accept parts of a witness's evidence.

[ 85 ] I do not accept the accused's explanation as to why he was driving on Stuart Drive East on August 15, 2014. He was aware at that time that Mr. Smith and his ex-wife, Ms. Traverse, resided on this street, and by his own admission, he had had problems with Mr. Smith prior to that date. It makes no sense that the accused would drop his daughter and her friends off at a park at 3:15 p.m. and then drive up Stuart Drive East when he knew he needed to be back at his home by 3:30 p.m. to meet his friend.

He also needed to put air in his tire at the Petro Canada station which was in a different direction from where he went. He clearly would have been late to meet his friend by taking this route, even if the incident did not occur. [ 86 ] I find given the history between the accused, Ms. Traverse and Mr. Smith, that the accused drove past the residence to check up on them. [ 87 ] I also accept the evidence of Mr. Smith that the accused directed a derogatory remark at him regarding the use of Cialis. This statement rings true and is consistent with the actions and animosity of the accused towards Mr.

Smith on previous occasions. [ 88 ] I do not, however, accept the evidence of Mr. Smith that he calmly went down to the road to see what the accused wanted. He had problems with the accused in the past and he had just been insulted. There was no reason for Mr. Smith to leave his location in the parking lot of his apartment building and go down to the road, other than to confront the accused. [ 89 ] I also do not accept the evidence of Mr. Smith that he went up on the hood of the red Dodge Caliber, and that his body struck the windshield of the vehicle.

This does not accord with the opinions of both experts or the obvious lack of damage to the hood of the vehicle. [ 90 ] I accept the evidence of both experts which put the point of collision on Stuart Drive East. Mr. Smith was on the road when his right leg was impacted by the right front tire of the accused's vehicle, as well as the side view mirror of the vehicle. [ 91 ] I accept the evidence of the accused that Mr. Smith threw an object, likely a water bottle, at the windshield of his car. This accords with the evidence of Mr. Sdoutz that an object was thrown at the windshield, causing a fracture.

Also, there was a water bottle found in the vicinity of the collision, and Mr. Smith testified that he had a water bottle, which was approximately half full, on his person at the time of the collision. [ 92 ] I also accept the evidence of the accused that he was braking prior to the collision and prior to the object being thrown. This also accords with the physical evidence and the opinion of both experts. [ 93 ] The evidence establishes that the accused made a derogatory comment to Mr.

Smith who then came down to confront the accused and, in doing so, stepped onto the road and threw an object, likely a water bottle, at the vehicle of the accused. [ 94 ] I accept the evidence of the accused that, when the object was thrown, he ducked down, which is a natural human reaction, and did not realize he directed his car to the right. I suspect that the accused was likely, as Mr. Smith testified, going to parallel park his vehicle on Stuart Drive East and have words with Mr. Smith. [ 95 ] Given the actions of Mr.

Smith in coming down onto the road and throwing a water bottle at the vehicle, I am not satisfied beyond a reasonable doubt that the accused intentionally meant to strike Mr. Smith with his vehicle or that he could have reasonably avoided the collision. [ 96 ] So sir, for those reasons, I find you not guilty of the single count of aggravated assault. [ 97 ] All right. So I would just like to thank both counsel for the very professional and efficient manner in which they conducted this trial. “The Honourable Mr. Justice Tindale”