R. v. Aipeelee, 2014 NUCJ 27

nunavuumi iqkaqtuijikkut NUNAVUT COURT OF JUSTICE La Cour de justice du Nunavut Citation: R. v. Aipeelee, 2014 NUCJ 27 Date: 20140915 Docket: 04-13-61 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: Joe Aipeelee ________________________________________________________________________ Before: The Honourable Mr. Justice A. Mahar Counsel (Crown): P. Ferrazzi Counsel (Accused): J. Bedford Location Heard: Clyde River, Nunavut Date Heard: June 23, 2014 Matters: Criminal Code, s. 249(4) REASONS FOR JUDGMENT (NOTE: This document may have been edited for publication) I. BACKGROUND

[ 1 ] On July 29, 2013, 18 year old Joe Aipeelee borrowed an all-terrain vehicle from his uncle, Moses Iqalukjuak. He drove the ATV and 16 year old Kevin Illauq sat behind Joe on the utility rack. They drove around Clyde River for a few hours, having fun, shouting and laughing and at times driving quite quickly. As they were proceeding along a lengthy stretch of gravel road with a gradual curve in it, the ATV left the road and struck a pile of boulders surrounding a telephone pole. Joe Aipeelee was thrown clear of the ATV while the passenger, Kevin Illauq, maintained his grip and struck the pole.

He died shortly after. II. ISSUES [ 2 ] It was conceded by the Defence that Joe Aipeelee was the driver at the time of the accident and that Kevin Illauq died as a direct result of the accident. The only issue in this trial was whether or not the driving was “dangerous” within the meaning contemplated by

section 249 of the Criminal Code . There was no evidence of intoxication or erratic driving. The Crown took the position that the vehicle was travelling at an excessive speed and put this forward as the only basis on which a conviction could be warranted. The Defence took the position that there was insufficient evidence that the vehicle was travelling at a dangerous speed when the accident occurred and asserted that, if there was liability to be found, it was at the civil standard rather than criminal. III. EVIDENCE AT TRIAL [ 3 ] Daisy Pallister lives close to the scene of the accident.

She was at home at the time and heard the ATV coming down the road. It sounded to her as though there was something wrong with the engine. She looked out her kitchen window and saw the ATV with two people on it leave the road in the direction of the telephone pole. She closed her eyes just before the collision and heard two big bangs and a crash. She believed the ATV was travelling fast, but agreed that it all happened “so fast” and that people regularly drive quickly down that relatively straight and unobstructed

section of road. [ 4 ] Ivan Sanguya heard the ATV approaching from behind and also remembered there being something odd about the sound of the engine. He turned and observed Joe driving with Kevin behind him. It appeared to him as though Joe was slowly “passing out” as his head was lowered towards the vehicle. I note at this point that there was no other evidence of intoxication and that the Crown was not putting intoxication forward as a ground of liability. The road was dry. There was no wind. He estimated the speed of the vehicle at 40 to 60 kilometres per hour.

He saw the ATV “slowly” leave the road and observed the collision. In answer to questioning during cross- examination, he stated that Joe Aipeelee wasn’t driving too fast. [ 5 ] April Natanine was at home smoking. She observed the ATV with the two young men on it through a partially opened door. Her evidence was that it was going very fast and they sounded happy. She did not see or hear the accident, which appears to have happened 5 to 10 minutes later.

She can therefore offer no evidence as to how fast the ATV was travelling at the time of the accident. [ 6 ] Moses Iqalukjuak, Joe Aipeelee’s uncle and the owner of the ATV, testified that he lent Joe the ATV that day in return for 60 dollars. He saw Joe and Kevin later when they drove by his house. He said they were driving normally but fast. “A little too fast for me”, he stated. He tried to get Joe’s attention by waving his arms. He was worried and wanted them to stop. He remembers Kevin Illauq shouting “Go! Go!

Go!” He testified that the vehicle appeared to slow down. 15 minutes later he heard the accident from his house, but did not observe it and could offer no evidence of speed or driving at the time of or leading up to the collision. [ 7 ] The last witness called by the Crown was RCMP Constable Sedat Kulokofski. He was called as the primary investigator in the case, not to give expert evidence. He testified that, although the road was dry, the surface consisted largely of dry, loose gravel.

The road declined in the direction of travel of the ATV and, in his opinion, even the relatively gentle curve in the road would have been sufficient to cause the ATV to lose control if it were travelling at an excessive rate of speed. In support of this hypothesis, he testified that the vehicle was found in be in 5th gear when it was examined later at the accident scene. As this is the highest gear available, it suggests that the vehicle was travelling very quickly at the time of the accident. He testified that the speed limit on the

section of road in question is 50 kilometres per hour. IV. FINDINGS OF FACT [ 8 ] It is clear from the evidence that the ATV driven by Joe Aipeelee was, at times, driven quite quickly on the day in question. The evidence relating to the driving just prior to the accident, however, is less compelling. The only estimated speed by an eyewitness was 40

to 60 kilometres per hour, which is essentially the speed limit. While the other witness to the driving at the time in question stated that the ATV was going ``fast``, but also testified that this was not out of the ordinary for that stretch of road. [ 9 ] The fact that the ATV was found in 5th gear was thought-provoking, although there is a potentially innocent explanation for this fact in the evidence. Both of the witnesses mentioned in the paragraph above testified that they thought something was wrong with the sound of the ATV`s engine just before the crash.

It is a matter of common knowledge that engines sound laboured when a manual transmission vehicle is travelling too slowly for the chosen gear. I am certainly not basing my decision on this minor exercise of judicial notice. I only mention it to point out that the evidence of the vehicle being in 5th gear does not lead inevitably to the conclusion that it was being driven at high speed. V. CONCLUSION [ 10 ] Dangerous driving requires a marked departure from the standard of care of a reasonably prudent driver.

The evidence in this case, while it suggests that more care could and should have been taken, does not establish a marked departure from the norm. I accordingly find the accused, Joe Aipeelee, not guilty. [ 11 ] I would like to make some additional comments. The tragic loss of Kevin Illauq was obviously deeply felt. His family must be devastated. Everyone who testified was very emotional. There can also be no question about the remorse felt by Joe Aipeelee. He cried virtually throughout the trial. His regret was obvious and moving.

We have all been young at one time and we have all made mistakes, sometimes dreadful mistakes. I hope that, in time, the people who have been injured by this terrible event can find some peace and the ability to forgive. Dated at the City of Iqaluit this 15th day of September, 2014 ___________________ Justice A. Mahar Nunavut Court of Justice