HER MAJESTY THE QUEEN - v. -, 2003 ABPC 78

R. v. J.B., 2003 ABPC 78 Date: 20030331 Docket: 020903860Y1 IN THE PROVINCIAL COURT OF ALBERTA BETWEEN: HER MAJESTY THE QUEEN - and - J.B. (a young person) REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE S.A. HAMILTON Counsel: W. I. Marke for the Crown A.D. Pringle, Q.C. for the young person [ 1 ] Shortly before 10 p.m. on November 5 th , 2001, after showing out her house guests, Gay Chisholm went out on the front balcony of her Edmonton residence to have a cigarette. Moments later, from that vantage point, she witnessed a motor vehicle accident on Buena Vista Road, which runs directly in front of her home.

A vehicle appearing to be travelling at an excessive speed went out of control on the curve, spinning across the travel portion of the road and colliding with a lamp post on the adjacent boulevard. A 16 year old boy who was a passenger in the motor vehicle, suffered massive head injuries and a shattered right femur in the accident and 10 days later tragically died in hospital of his injuries. That young man, Colin Matthew Quince, had gone out tobogganing with friends that evening. He called home to say that they were then going for a “booster juice”, after which his parents expected him home.

He never made it home. He accepted a ride from his friend since childhood, J.B., the accused young person. J.B. lost control of the motor vehicle on a curve, resulting in the vehicle ultimately colliding with a light standard, taking the life of his best friend. J.B. was subsequently charged with dangerous driving causing death. [ 2 ] Causation is not in issue, as the accused young person admitted that Mr. Quince died as a result of the injuries sustained in the motor vehicle accident.

[ 3 ] J.B. had received his Class 5 Operator’s Licence less than three months prior to the date of this accident. He was operating his mother’s vehicle which was nearly new and in good mechanical condition. Prior to the accident, the young person’s total driving experience was approximately 500 kilometres. [ 4 ] The evidence from a number of sources established that the young person was driving at a speed in excess of 80 kilometres per hour at the time of losing control of his vehicle. Mrs. Chisholm estimated the speed at over 80 kilometres per hour.

Her husband, who was out walking the dog, had observed the young person’s vehicle some minutes prior to the accident travelling in the opposite direction up hill on Buena Vista Road at a speed that he estimated to be in excess of 80 kilometres per hour. Graham McCalister, a paramedic, overheard the accused say words to the effect that he didn’t know how fast he was going, “about 85, I think”.

Finally, the police accident reconstruction expert testified that according to his computations, based on the evidence that he gathered, the vehicle had been travelling a minimum of 84 kilometres per hour. [ 5 ] The road at the time was clear and dry. It was a fairly wide road in a residential area with an unposted speed limit of 50 kilometres per hour. At the point of the accident, the road grade was a downhill slope of 5½ percent and the road curves noticeably. There were no visibility problems. The police concluded that braking had taken place as evidenced by marks on the road surface.

Constable Mathieson, the accident reconstructionist, stated that an experienced driver going 85 kilometres an hour at this point who had lost control could regain control of the vehicle. What essentially happened here, however, was that the young person braked, throwing the vehicle into a skid. What would have assisted in regaining control of the vehicle was acceleration to pull the vehicle out of its skid path, but that did not occur here. [ 6 ] The definitive law on the criminal offence of dangerous driving was enunciated by the Supreme Court of Canada in R. v.

Hundal (1993) 1993 CanLII 120 (SCC) , 79 C.C.C. (3d) 97. In that case, the Supreme Court ruled that negligence could, in the appropriate context, form an acceptable basis for liability so as to meet the requirements of

Section 7 of the Canadian Charter of Rights and Freedoms , which prohibits imprisonment in the absence of proof of some element of fault. The Court went on to find that a “modified objective test” is to be applied in determining the offence of dangerous driving. It is within the framework set out in R. v. Hundal that I have concluded that J.B.’s driving was not dangerous driving within the context of the Criminal Code .

The test that I have applied is whether, viewed objectively, J.B. was driving in a manner dangerous to the public, taking into account all existent circumstances including the nature, condition and use of the road he was driving upon and the nature and type of traffic that might be expected on that road. The Supreme Court in Hundal cautioned that since driving is an activity with a licencing requirement, generally the personal factors of an individual accused need not be considered.

Rather, the Court must examine the standards that one would expect a licenced driver to meet and determine based upon those standards whether the accused’s conduct amounted to a marked departure from the standard of care that a reasonable person would observe in the accused’s situation. [ 7 ] The accused was speeding, of that there is no doubt. He was aware that he was speeding. His speeding was not a momentary transitory action, but rather took place for some minutes prior to the fatal collision. He was initially seen speeding by Mr.

Chisholm whose evidence was that he saw the accused “barely navigate the curve” as he proceeded up-hill, in the opposite direction from the accident scene, some minutes prior to the accident. I can clearly deduce from the evidence that after Mr.

Chisholm saw the accused’s vehicle go by, the accused would have had to turn the vehicle around, either by proceeding through a traffic circle at the top of the hill, or at some point making sufficient turns to place him in the situation where his vehicle was now negotiating down the hill, at which point he lost control. [ 8 ] Traffic courts in this Province, indeed across the country, are inundated daily with tickets issued to drivers who break the law by operating their motor vehicles at speeds in excess of the lawfully proscribed speed limits.

These speed limits are no doubt imposed with a view to what is deemed to be a safe speed in certain areas, having regard to such factors as population density, surrounding activities (e.g. schools, playgrounds, hospitals), road surface (e.g. pavement, gravel, et cetera), hazards (e.g. curves, bumps, et cetera) and any other pertinent considerations. Nevertheless there are thousands of incidents yearly of people exceeding those posted speed limits. Many exceed those limits at rates beyond that reached by the accused young person on the date of this accident. Speed is often a factor in motor vehicle accidents.

However, speed is clearly frequently engaged in without any resultant accident. Tragically, as a result of J.B.’s speeding, a family has lost a beloved son and J.B. has lost his best friend. That terrible consequence, however, does not of itself elevate the unlawful behaviour of speeding to the crime of dangerous driving. It is not the case that the thousands of people in this country who hurtle down the roads at excessive speeds daily are a mere consequence away from criminality. [ 9 ] That is not to say that in no circumstances can excessive speed form the basis for a finding of dangerous driving.

In the case of R. v. J.B.M. (1993) 1993 CanLII 654 (BC CA) , 81 C.C.C. (3d) 521 the British Columbia Court of Appeal found a young person guilty of the offence of dangerous driving causing death in circumstance hauntingly similar to those in the case before me today. However, in that case the young person was coming down a hill in a 60 kilometre per hour zone, when he passed a sign showing a 90

degree right-hand curve with advised speed of 50 kilometres per hour. He was travelling at speeds up to 130 kilometres per hour. He had been entreated by his friend in the car to slow down, but did not do so as he wished to prove that “I wasn’t a pussy driver”. That foolhardy deliberate risk taking found in R. v. J.B.M. is not evident in the case before me. Nor is there any suggestion that there were any signs warning of the curve or of any particular difficulty with the curve that would require an adjustment in speed. I am mindful of Mr.

Chisholm’s evidence that the vehicle in question had barely navigated the curve going up the hill minutes before the accident. However, I did not have the benefit of actually hearing Mr. Chisholm’s evidence, as it was given by way of Agreed Statement of Fact.

I was therefore unable to hear precisely what had occurred in the negotiation of that particular curve, and I am mindful of the fact that the accused did negotiate that curve, and either a traffic circle or other corners, successfully so as to be driving the motor vehicle back down the hill minutes later. [ 10 ] I am also able to distinguish the case before me from that of R. v. M.J.Z.

(1994) A.J. No. 460 , a decision of the Honourable Judge Brownlee of the Alberta Provincial Court. In that case as well, speed was the main cause of the fatal collision. In that case, there had been some alcohol consumption, although no suggestion that the accused was legally impaired. The accused in that case was driving a vehicle described as a “powerful little unit”, and the accused had shifted down, taking a corner very hard with the engine roaring and tires squealing. In the case before me, there is no evidence of the type of stunting-like behaviour that appeared in R. v.

M.J.Z. [ 11 ] I am unable to conclude that the driving by the young person on the night in question was dangerous to the degree required to found a conviction under the Criminal Code . Undoubtedly his actions are blameworthy, but in my estimation they do not cross the threshold required to characterize his conduct as criminal. [ 12 ] On the whole, J.B. was not conducting himself as a reasonably prudent driver should on the occasion of this tragic accident. He departed from that standard. However, a mere departure from that standard is not sufficient to convict him of dangerous driving under the Criminal Code .

The departure must be a gross departure from what one would expect of a reasonably prudent driver given the circumstances existent at the time. That gross departure has not been demonstrated. Accordingly, the young person is not guilty of the offence of dangerous driving causing death. [ 13 ] Dated at the City of Edmonton, in the Province of Alberta, the 31 st day of March, 2003. _____________________________________ S. A. HAMILTON A Judge of the Provincial Court of Alberta