Her Majesty the Queen - v. -, 2013 SKPC 61

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2013 SKPC 061 Date: April 5, 2013 Ticket: 7468710 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - Andrew D. Puglia Appearing: Mr. William G. Burge For the Crown Mr. Aaron A. Fox, Q.C. For the Accused JUDGMENT D. KOVATCH , J BACKGROUND [ 1 ] The accused, Andrew D. Puglia is charged that on September 16, 2011, he drove without due care and attention, contrary to s. 213(1) of The Traffic Safety Act . The trial took place in Regina on February 13, 2013. THE EVIDENCE

[ 2 ] The only witness called for the Crown was Mr. Jeffery O’Grodnik. Mr. O’Grodnik testified that he is self-employed in Regina as a concrete contractor. On September 16, 2011, at approximately 5:00 to 6:00 p.m., Mr. O’Grodnik was driving his half-ton truck on Regina’s Ring Road, travelling in a southerly and westerly direction. The Ring Road is a divided highway with two travelled lanes in each direction. There is also controlled access to the Ring Road throughout. At this time, he noticed a police car travelling in the opposite direction on the Ring Road.

The police car then made a left-hand turn through the meridian between the two travelled portions of the highway, and went across the road in front of Mr. O’Grodnik and into the ditch on the right-hand side of the road. Mr. O’Grodnik was quick to point out that he momentarily took his foot off of the accelerator but the vehicles were not close to a collision, and there didn’t appear to be anything particularly dangerous in this driving action. [ 3 ] As Mr.

O’Grodnik passed this vehicle, then in the ditch, he noticed the police vehicle turning left in the ditch to travel roughly parallel to the Ring Road, and possibly enter the Ring Road. At this same time, the emergency lights on the police vehicle came on. At this time, Mr. O’Grodnik was just approaching the ramp where vehicles coming from Wascana Parkway would enter the Ring Road to travel south and west. Mr. O’Grodnik assumed that the police officer was intent upon pulling Mr. O’Grodnik over. As a result, Mr. O’Grodnik fairly quickly pulled over and off the right side of the road and stopped.

At this time, the police vehicle struck the rear end of Mr. O’Grodnik’s vehicle. Mr. O’Grodnik said that it was still daylight, visibility was good, and the road conditions were good. He said he was not injured in the collision. [ 4 ] Under cross-examination by defence counsel, a map of the area was introduced and a number of photographs. Counsel was able to establish that the damage to Mr. O’Grodnik’s vehicle was to the very left and rear area of the bumper and fender. It appeared that it was almost a glancing blow or collision with the police vehicle making fairly slight contact with Mr.

O’Grodnik’s truck. [ 5 ] Defence counsel admitted that the accused Andrew Puglia was the operator of the police vehicle. It was not necessary for the Crown to call a witness to establish this fact. [ 6 ] The accused, Andrew D. Puglia was the only witness called for the defence. He testified that his age is 43 years. He has been a member of the Regina Police Service for 20 years, and has been a sergeant with the police service for the last six years. [ 7 ] On September 16, 2011, he was the officer in charge of a traffic safety unit. He was involved with a group of officers targeting speeders on Regina’s Ring Road.

He advised that another officer had radar set up on top of the Wascana Parkway overpass. From this point, the officer could ascertain the speed of all vehicles travelling south and west along the Ring Road. Sergeant Puglia and some other police officers and vehicles were stationed along the Ring Road south and west of the Wascana Parkway overpass. They had constant radio contact with the radar operator located on the overpass. The radar operator would advise of a brief description and particulars of individuals that were speeding.

Sergeant Puglia or one of the other officers would then pull over the offending vehicle and issue a ticket. [ 8 ] Sergeant Puglia testified that he had to pursue one vehicle almost to Albert Street before he could get it stopped. The stopped vehicle was an unregistered vehicle. The sergeant had to request a tow truck to come and tow that vehicle. As a result, the sergeant was on this stop for a particularly long period of time. He then drove east and north along the Ring Road toward Wascana Parkway so that he could rejoin the group ticketing speeders.

As he approached his set up point, he received a call on the radio from the radar operator, advising that a white foreign car (travelling in the opposite direction of the police officer) was travelling at 138 kilometres per hour. There were no police vehicles at the set up point, and thus no police vehicles to stop this offender.

As a result, Sergeant Puglia made the left-hand turn, crossed the meridian between the two travelled portions of the highway, crossed the south and west travel lanes, and entered the ditch to the right of the south and west travel lanes. [ 9 ] At this point, the police officer again turned towards his left which put him travelling in a direction almost parallel to the south and west travel lanes. At the same time he activated his emergency lights.

The officer testified that he was intent upon climbing back up on the right side of the road and pursuing the white speeding vehicle. [ 10 ] The officer testified that he had placed a significant number of tickets and other paperwork on top of his sun visor. The front wheels on the police vehicle hit a high pavement edge as he attempted to get back onto the highway. The visor suddenly fell down as did

all of the tickets and papers on top of the visor. He was momentarily distracted and blinded just as he was coming onto the highway. Hecranked the wheel hard to the right to avoid entering the fast moving traffic. At that moment, he noticed the truck was stopped. He thenattempted to crank left to go around the truck. He said that he “almost made it”. However, the right front portion of the car sideswipedor glanced along the very left and rear bumper and fender of the truck. He then stopped his vehicle.

Other police officers were called toinvestigate the situation. [11] Under cross-examination, Sergeant Puglia testified that he wasn’t going fast at the time of collision. He was probablytravelling less than 50 kilometres per hour. ANALYSIS AND DECISION [12] The sole issue is whether the Crown has proved this offence beyond a reasonable doubt. [13] In the case of R. v.

Dookhun, 2010 SKQB 100, Madam Justice Wilkinson summarized the law regarding this charge asfollows: To establish the offence of driving without due care and attention, the Crown must prove beyond a reasonable doubt that the defendant’smanner of driving, viewed objectively, is a departure from the standard a reasonable and prudent driver would have observed in all thecircumstances. The Crown must show a sufficient departure from the standard of a prudent and reasonable driver to make the driving“deserving of punishment”.

These are the propositions of law established by the Ontario Court of Appeal in the cases of R. v.Beauchamp, (ON CA), [1953] O.R. 422 (Ont. C.A.) and R. v. Wilson (1970), (ON CA), 1 C.C.C. (2d)466 (Ont. C.A.), and followed in Saskatchewan, in such cases as R. v. Turgeon (1958), (SK KB), 28 C.R. 21 (Sask.Dist. Ct.), R. v. Hauser, 2009 SKPC 3 , 2009 SKPC 3, 330 Sask. R. 167, R. v. Wylie, 2008 SKPC 69 , 2008 SKPC 69,69 M.V.R. (5th) 151, R. v. Lozinski, 2008 SKPC 6 , 2008 SKPC 6, 62 M.V.R. (5th) 111, R. v. LaRoche, 2007 SKPC 21, 2007 SKPC 21, 294 Sask. R. 144 and R. v. Tyndall, 2005 SKPC 38 , 2005 SKPC 38, 261 Sask.

R. 288. [14] She further stated at paragraph 34: The offence of driving without due care and attention is a strict liability offence meaning that the proof of the act of careless andinattentive driving establishes the offence regardless of intent. The defence of due diligence is available, which is made out when adefendant demonstrates on a balance of probabilities that reasonable care was taken in the circumstances. [R. v. Kozun, (SKQB), (1997), 154 Sask. R. 81 (Q.B.), per Hunter J., as she then was.] [15] In R. v.

Beauchamp, (ON CA), [1953] 16 C.R. 270, the Court stated that the law does not require a driver tohave “perfect nerve and presence of mind, enabling him to do the best thing possible”. The Court further stated that the question is“What would an ordinary prudent person in the position of the defendant have done in relation to the event complained of?” In the caseof R. v.

Laroche, 2007 SKPC 21, Her Honour Judge Gray reviewed a number of decisions, including Beauchamp, and then concluded asfollows: Although this behaviour may not be the most prudent course of action, the question is whether it is so negligent as to warrant sanction,particularly given the short duration of the driving and the lack of any indication of loss of control of the vehicle.

In conclusion, althoughthe driving conduct of the defendant at the critical time was not flawless, the court is not satisfied that the facts established show, beyonda reasonable doubt, that the defendant drove without the requisite due care and attention. [16] In this case, I would conclude that Sergeant Puglia’s driving was not perfect nor flawless. Vehicles are sometimes parked onthe side of the road, and individuals are required to operate their vehicles in such a manner so as to avoid collision with a parked vehicle. In this case, Sergeant Puglia was negligent in that he did not avoid a collision with Mr.

O’Grodnik’s parked vehicle. But in the wordsutilized by Her Honour Judge Gray in the Laroche decision, “the question is whether it (the accused’s driving) is so negligent as towarrant sanction ...”. In my view it was not. I note that in the Dookhun case and in some other decisions, there is evidence of aprolonged course of negligent and risky driving behaviours. That is not the case here. The officer was suddenly and momentarilyconfronted with an unexpected situation. His response was not flawless or without error, but in my view it was not so negligent as to

warrant sanction. In the cases of R. v. Timothy J. Roberts , (January 25, 2012), Moose Jaw Information #7348475 (Sask. Prov. Ct.) and R. v. Hagan , (October 26, 2011), Moose Jaw Information #7221573 (Sask. Prov. Ct.), I found the accused persons not guilty of driving without due care and attention, when each of them suddenly and unexpectedly came upon very icy conditions. It seems to me that this case is similar to each of those in that Sergeant Puglia suddenly and very unexpectedly came upon this situation.

He was negligent in that he failed to avoid a collision, but was not so negligent that he should be found guilty of driving without due care and attention. [ 17 ] For all of the above mentioned reasons, I find Sergeant Puglia not guilty of the charge. [ 18 ] I express my thanks to both counsel for their very skillful court presentation and arguments. [ 19 ] Dated at Regina, Saskatchewan this 5 th day of April, 2013. D. Kovatch, J