R. v. Relkie Date:, 2011 BCPC 322

Citation: R. v. Relkie Date: 20110323 2011 BCPC 0322 File No: 15392-1 Registry: Sechelt IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. CHARLES BRUCE RELKIE ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE S. MERRICK Counsel for the Crown: T. Cockfield Counsel for the Defendant: S. McMurdo Place of Hearing: Sechelt , B.C.

Date of Judgment: March 23, 2011 [ 1 ] THE COURT: 15392-1: Count 1 Charles Bruce RELKE, on or about the 19th day of February, 2009, at or near Roberts Creek, in the Province of British Columbia, while his ability to operate a motor vehicle was impaired by alcohol or a drug did operate a motor vehicle, and thereby did cause bodily harm to Linda Clost, contrary to Section 255(2) of the Criminal Code . I will refer to that as a charge of drive impaired cause bodily harm.

Count 2 Charles Bruce RELKE, on or about the 19th day of February, 2009, at or near Roberts Creek, in the Province of British Columbia, did operate a motor vehicle, in a manner that was dangerous to the public having regard to all of the circumstances including the nature, condition and use of the place at which the motor vehicle was being operated, and the amount of traffic that at the time was or might reasonably be expected to be at that place, and thereby did cause bodily harm to Linda Clost, contrary to Section 249(3) of the Criminal

Code. I will refer to that as a charge of drive dangerous cause bodily harm. [2] On February 19, 2009, Mr. Relke travelled from the Lower Mainland to the Sunshine Coast on the 3:30 sailing of the B.C. ferry. He drove his vehicle onto the ferry. At approximately 4:10 or shortly thereafter when the ferry arrived, he drove off the ferry at theLangdale ferry terminal and began his drive home to Sechelt. He travelled up what has been referred to as the "bypass," ultimately ontoNorth Road, then right onto Reed Road, left onto Payne, and then right onto Highway 101. On Highway 101 near Conrad, Mr.

Relkewas involved in a serious motor vehicle accident. [3] The issues for me to decide are whether the Crown has (1) proven the charge of drive impaired cause bodily harm beyond areasonable doubt, and (2) has the Crown proven the charge of drive dangerous cause bodily harm beyond a reasonable doubt? [4] In dealing with Count 1, Crown counsel asks me to note that there were indicia of impairment. That is, Mr.

Relke was observedor noticed to smell of alcohol, had a red face, watery bloodshot eyes, slurred speech, and he acknowledged that he had consumed onemartini and one glass of red wine. [5] Crown counsel further argues that, in addition, I should take into account and should accept that Mr. Relke was driving above theposted speed limit and driving around a curve and that the manner of driving and the lack of reaction is further indicative of the fact thatMr.

Relke's ability to operate a motor vehicle was impaired by alcohol. [6] Defence counsel says that the indicia of impairment - the red face, the watery bloodshot eyes, slurred speech - are as equallyconsistent with the after-effects of the injuries or the accident that Mr. Relke was in himself as a result of the collision. [7] Counsel have referred me to the decision of Berner, a decision of Judge Gulbransen. The judgment was pronounced July 27,2010.

Specifically, with respect to para. 35 [sic], Judge Gulbransen was asking the question, What can explain the conduct? and JudgeGulbransen noted that: The accused is not required to explain anything. Rather, the burden is on the Crown to prove that the only rational conclusion to bedrawn from this evidence is that the accused’s ability to drive was impaired by alcohol. [8] With respect to this matter, I agree that the indicia of impairment of red face, watery bloodshot eyes, slurred speech, are asequally consistent with the effects of the accident that Mr. Relke was involved in.

I note that prior to the accident itself, there wasnothing improper about Mr. Relke's manner of driving. I am not satisfied that the only rational conclusion is that Mr. Relke's ability tooperate a motor vehicle was impaired. I am not satisfied beyond a reasonable doubt that the Crown has proved the charge of driveimpaired cause bodily harm, and I find Mr. Relke not guilty with respect to Count 1. [9] With respect to Count 2, again, it is a question of whether the Crown has proven each element of the offence beyond a reasonabledoubt. I want to say this about reasonable doubt.

The reasonable doubt standard is a single objective and exacting standard of proof. Itis not the same as proof of probability, and it is not like subjective standards of care that we apply in important everyday situations. It isnot proof to an absolute certainty. It is not proof beyond any doubt. Nor is it an imaginary or frivolous doubt. It is based on reason andcommon sense and not on sympathy or prejudice: see R. v.

Lifchus (1997), (SCC), 9 C.R. (5th) 1 (S.C.C.). [10] Proof beyond a reasonable doubt falls much closer to absolute certainty than to proof on a balance of probabilities: see R. v.Starr (2001), 2000 SCC 40 , 36 C.R. (5th) 1 (S.C.C.). [11] Mr. Relke, I am not going to keep you in suspense.

I am satisfied that the Crown has proven beyond a reasonable doubt thecharge of drive dangerous cause bodily harm, and this is my reason. [12] With respect to what you say about the turn that you made from Payne Road onto Highway 101 where you were saying that youwere going between 60 and 70 kilometres an hour, I am afraid, sir, I do not believe that. The reason I do not believe that is because youwere involved in the accident just a short time after that.

You acknowledge that you do not remember what happened in the shortdistance leading up to the accident, and I do not believe that you, as a result of the accident, could remember the speed you weretravelling on that day on that portion of the highway. [13] I also take into account and I am not left in a reasonable doubt with respect to what you said about the speed that you weredriving. Because that is a straight stretch of road, the speed increases once you turn onto Highway 101 after -- at least at some point intime it increases to 80 kilometres an hour. It is a straight stretch of road.

To me, it does not have a ring of truth or make sense that in an80-kilometre zone you would travel 60 to 70. You are travelling home to Sechelt. The speed limit is 80. The road conditions and thesituation is such that you can travel that road at 80 kilometres an hour, and I do not believe you when you say you were going 60 or 70,and it does not raise a reasonable doubt in my mind. [14] That, of course, does not end the issue because I still, as I say, and I am satisfied the Crown has proven the case beyond areasonable doubt, and I have thought about what Mr.

McMurdo has argued, and despite his able submission, I am satisfied that theevidence of Mr. Sullivan is sufficient, especially when combined with the evidence of Ms. Sweet. Mr Sullivan was an impartial witness. I found that he gave his evidence in a consistent manner. While I appreciate what Mr. McMurdo has argued about Mr. Sullivan's -- itwas just Mr. Sullivan's impression, I am of the view that he had the ability and capacity to observe, to remember, and to communicate. What he described was that he was behind you.

He noticed you because you were travelling at a rate of speed of just in excess of 80kilometres an hour. I accept that evidence. It has a ring of truth. It makes sense that he would notice you because he was following rightbehind you. He describes a deliberate act of moving into the lane of oncoming traffic. In my view, he was certain of his evidence whenhe said that you were accelerating in which appeared to be a situation of passing the blue pickup. As Crown counsel argues, and I agree,driving is something that we all do on a regular basis. I am confident that Mr.

Sullivan is accurate and able to say that you caused thevehicle to move over into the lane of the oncoming traffic. You were accelerating.

[ 15 ] Although Ms. Sweet is wrong with respect to where it occurred in what she described, she too describes, however, a vehicle in the oncoming lane appearing to pass. [ 16 ] I have considered what Mr. McMurdo has further argued about how it was essentially such a dangerous act that there was no way that you would deliberately do that. With all due respect to his able submission, I do not agree. Mr. Sullivan, as I say, I find him to be a credible witness.

I find that he related his evidence in what I find to be a reliable way, that he described you moving into the lane of oncoming traffic, and I find as a matter of fact that on that day, sir, you made the deliberate decision to try and pass, and as a result, that decision in moving into the lane of oncoming traffic, crossing a double solid line in an attempt to pass, constitutes dangerous driving, and I am satisfied that because of the way Mr.

Sullivan described it in the sense that it was a deliberate act, you intended to pass on that day, and it is for that reason, sir, that I find you guilty of the charge of drive dangerous cause bodily harm as contained in Count 2 of the information. (REASONS CONCLUDED)