R. v. Smith Date:, 2018 BCPC 20

Citation: R. v. Smith Date: 20180105 2018 BCPC 20 File No: 19839-1 Registry: W. Communities IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. SHANE MICHAEL SMITH REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J.P. MacCARTHY Counsel for the Crown: S. Salmond Counsel for the Defendant: T.J. Russell Place of Hearing: Colwood , B.C. Dates of Hearing: November 22, 2017, January 4, 5, 2018 Date of Judgment: January 5, 2018

Introduction [1] THE COURT: Shane Michael Smith faces charges on a three-count Information containing allegations about dangerousoperation of a motor vehicle resulting in a number of hit and run accidents which all took place in a period of less than an hour insuburban areas surrounding Victoria, British Columbia, on November 25th, 2016. [2] Those charges are as follows: on Count 1, an allegation that he did: ...operate a motor vehicle, in a manner that was dangerous to the public having regard to all 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 mightreasonably be expected to be at that place. being an offence contrary to s. 249(1)(

a) of the Criminal Code. [3] On Count 2, the allegation is that he: ... having the care, charge or control of a vehicle that was involved in an accident with [that] vehicle did, with intent to escape civil orcriminal liability, fail to stop his vehicle and give his name and address and offer assistance. being an offence contrary to s. 252(1)(

b) of the Criminal Code. [4] On Count 3, the allegation is that he: ... having care, charge or control of a vehicle that was involved in an accident with [that] vehicle, did, with intent to escape civil orcriminal liability, fail to stop his vehicle and give his name and address and offer assistance. again being an offence, contrary to s. 252(1)(

b) of the Criminal Code. [5] There is no doubt about the identity of the motor vehicle that was involved in the incidences that have given rise to thesecharges. The issue is who was the driver of the motor vehicle. Shane Michael Smith (the “Accused”) denies that he was the driver ofthe motor vehicle when the incidences giving rise to the charges occurred.

He blames the driving incidences on a friend whom he sayshad borrowed the vehicle and returned it to him damaged. [6] The task of this court is to determine whether or not Crown has satisfied its burden and proven each of the three offencesbeyond a reasonable doubt. Presumption of Innocence [7] The obligation is upon the Crown to prove all elements of each offence beyond a reasonable doubt. If that occurs, then andonly then can the court convict the accused person. Where reasonable doubt exists on any element of the offence charged, the accusedmust be acquitted.

The burden of proof rests upon the prosecution throughout the trial and never shifts to the accused person. [8] Reasonable doubt is not an imaginary or frivolous doubt, nor is it based upon sympathy or prejudice. Reasonable doubt is adoubt based on reason and common sense which must logically be derived from the evidence or absence of evidence. The Crown mustprove more than probable guilt. However, reasonable doubt does not involve proof to an absolute certainty since that would be animpossibly high standard.

The standard of reasonable doubt falls much closer to absolute certainty than to proof on a balance ofprobabilities. In short, if, based upon the evidence before the court, the finder of fact is sure the accused committed the offence, then thefinder of fact should convict since this demonstrates that the finder of fact is satisfied of the accused’s guilt beyond a reasonable doubt.(See R. v. Lifchus, (S.C.C.), [1997] 3 S.C.R. 320, and see R. v.

Starr, 2000 SCC 40 , [2000] 2 S.C.R. 144) The W.(D.) Formulation [9] I must instruct myself that in the trial of criminal matters it is not a question of which witness' evidence or version of the eventsI believe, but rather whether, on the totality of the evidence, Crown has proven each essential element of each offence beyond areasonable doubt. [10] Where there is evidence of an accused that raises a defence, as is the case in this matter, then I must further instruct myself andI must apply to this evidence the well-known process of analysis set out in R. v.

W.(D.), (S.C.C.), [1991] 1 S.C.R. 742,found at paragraph 28. First, if [I] believe the evidence of the accused, [then] obviously [I] must acquit. Secondly, if [I] do not believe the testimony of the accused, but [I am] left in a reasonable doubt by it, [I] must acquit. Third, even if [I am] not left in doubt by the evidence of the accused, [I] must ask [myself] whether, on the basis of the evidence which[I] do accept, [I am] convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [11] I am also guided by the following comments of the Prince Edward Island Court of Appeal in R. v.

J.M.H, 2012 PECA 6, [2012]P.E.I.J. No. 10, at paragraphs 30 to 31: [30] Our courts have stated that proof beyond a reasonable doubt is not satisfied by belief of a complainant coupled with disbelief of anaccused. Correct application of the principle in W.(D.) involves going on from step one to step two to analyze and consider whether thatevidence nevertheless raises a reasonable doubt and if not, then going on to step three and determining whether the evidence taken as a

whole raises a reasonable doubt. (R. v. Ellis, 2006 PESCAD 25, at paragraph 18). Proper application of the third step involves movingthe focus from the evidence of the accused to the Crown's evidence and assessing it in its own right (in relation to all the evidence) onthe criteria of coherency, reliability, credibility. This goes toward the issue of whether the Crown has satisfied the burden of bringingevidence that can prove guilt beyond a reasonable doubt (R. v. S.F. 2007 PESCAD 17, at paras 28-31) The Supreme Court of Canadarecently stated in R. v.

J.H.S., 2008 SCC 30 [CanLII], at para. 8, that a series of decisions has affirmed and reaffirmed that wherecredibility is a central issue in a jury trial, the judge must explain the relationship between the assessment of credibility and the Crown'sultimate burden to prove the guilt of the accused to the criminal standard. [31] The third step in W.(D.) stresses that the onus is on the Crown to prove the guilt of the accused beyond a reasonable doubt. It ispossible that the trial judge would disbelieve the accused but still find the Crown had not proved guilt beyond a reasonable doubt.

Thekey is whether the correct burden and standard of proof were applied; not what words were used in applying them (R. v. C.L.Y., 2008SCC 2, at paragraph 7). [12] The supplemental test, enunciated by the British Columbia Court of Appeal in R. v. C.W.H., [1991] B.C.J. No. 2735, adds afourth step to the W.(D.) analysis, namely, if, after consideration of all the evidence, the court is unable to decide whom to believe withrespect to the central issue in a prosecution, then the accused must be acquitted.

Josiah Wood J.A., as he then was, suggests, logically,this ought to be second in order in the W.(D.) analysis. [13] It is also important to instruct myself that the W.(D.) model is not intended to be a precise formulation to be used at all times orto achieve a level of sanctity or immutable perfection. Once again, I must instruct myself on the main point that the burden never shiftsfrom Crown to prove every element of the offence beyond a reasonable doubt. The lack of credibility on the part of the accused does notequate to proof of his or her guilt beyond a reasonable doubt. (See R. v.

S.(J.H.), 2008 SCC 30 , [2008] 2 S.C.R. 152). Assessing Credibility and Reliability of Witnesses [14] In this case, I have heard evidence that is conflicting on material matters. Therefore, I must assess the credibility and thereliability of the witnesses who provided this conflicting evidence. In doing so, I must weigh all of the evidence.

In so weighing theevidence, I may reject or accept some or all of the witness' testimony, after having taken into account a multitude of factors whichinclude, but are not limited to, appearance or demeanour, ability to perceive, ability to recall, motivation, probability or plausibility, andinternal or external consistency. [15] I must also direct myself that even honest witnesses may make mistakes in their evidence or have errors of recollection or maypresent upon the stand in a nervous or uncertain manner for reasons unrelated to the truthfulness of their testimony. [16] It is an error in cases of contradictory evidence to simply weigh the evidence of one witness against the evidence of another.(See R. v.

Jackson, 2007 BCSC 636; see also R. v. Mann, [2010] A.J. No. 1094). Assessment of a Witness' Evidence [17] As noted above, I must have regard to the credibility and to the reliability of each witness’ evidence. In R. v. C.(H.), 2009ONCA 56 , Watt J.A. explained the difference between credibility and reliability at paragraph 41: [41] Credibility and reliability are different. Credibility has to do with a witness’s veracity, reliability with the accuracy of the witness’stestimony. Accuracy engages consideration of the witness’s ability to accurately (

i) observe; (ii) recall; and (iii) recount the events inissue. Any witness whose evidence on an issue is not credible cannot give reliable evidence on the same point. Credibility, on the otherhand, is not a proxy for reliability: a credible witness may give unreliable evidence: [R. v. Morrissey, 1995 CanLII] R. v. Morrissey ... (ON CA), 22 O.R. (3d) 514, at 526 (C.A.). [18] There are many factors to take into account when assessing a witness’ evidence, some of which are: 1. Did the witness seem honest? Was he or she evasive or argumentative with counsel? 2.

Did the witness have an interest in the outcome of the case? 3. Did the witness have a good memory about the event? Did any inability to remember seem genuine or an excuse to not answerquestions? 4. Did the witness appear to be testifying as to what they actually heard or saw or are they adding in details based on othersources? 5. Was the testimony of the witness reasonable and consistent? Was the witness’ evidence consistent with the other evidence inthe case? 6. Do any of the inconsistencies in the witness’ evidence make their testimony more or less believable and reliable?

Is theinconsistency about something important or a minor detail? 7. Was the witness’ evidence plausible? [19] In assessing the credibility and reliability of those witnesses who have provided the conflicting evidence about the allegedoffences, the testimony of each witness can be considered from three perspectives: (

a) their truthfulness: whether they are trying to tell the truth or intentionally lying when testifying; (

b) their objectivity: whether they have been influenced by assumptions or emotions which may affect the accuracy of theirperceptions; and

(

c) the accuracy of their observations: their abilities to observe, remember, and communicate accurately. [ 20 ] In the recent case of R. v. Cuhna , 2015 BCPC 60 , at paragraphs 5 and 6 , the court provides a useful review of factors to be considered when assessing the testimony of a witness from these three perspectives. I have utilized and considered those factors of truthfulness, objectivity, and accuracy in coming to my conclusions in this matter.

The Evidence [ 21 ] For the purpose of these reasons, I have broken the evidence into three categories: first, what I view as non-controversial background facts that surround this case; second is the evidence adduced by Crown in support of the Crown’s theory of the case; and last is the evidence adduced by defence in support of its theory of the case. In the matter before me the defence evidence has been provided by the Accused. [ 22 ] I note the decision of the Honourable Judge T.S. Woods in R. v.

Connell , 2017 BCPC 123 , in particularly at paragraphs 5 and 6, and the guidance it provides and which I have followed into making selective references to certain evidence in these reasons for judgment. In that decision, the Honourable Judge Woods notes in paragraph 6: That it is an acceptable practice for a trial judge to confine him or herself, in Reasons for Judgment, to a compressed and somewhat selective canvassing of the evidence heard at trial ...

Judge Woods says that this proposition is well-established by the authorities and he goes on to say, based upon a number of cited authorities, that: The law is clear that where there is substantial support in the record for a trial judge's findings and the inferences drawn from them, the trial judge does not make a reversible error by failing to refer to every item of evidence that was adduced… Undisputed Facts [ 23 ] The events giving rise to the charges started on November 25th, 2016, when a Lexus SUV being driven eastbound by Christine Petronis.

Christine Petronis, then accompanied by her then four-year-old granddaughter as a vehicle passenger, was rear-ended on the Old Island Highway immediately in front of the Juan De Fuca Recreational Centre and across the street from the Western Communities Courthouse in Colwood, British Columbia. The collision occurred sometime shortly before 9:15 a.m. [ 24 ] The colliding vehicle which struck the Lexus SUV from behind, with its front was an older model two-tone brownish bronze and beige Winnebago motorhome bearing Licence Plate "CM2 97C," (the "Motorhome”).

Fairly extensive damage was caused to the rear of the Lexus SUV. [ 25 ] Immediately following the collision, Ms. Petronis turned her Lexus SUV into the parking lot of the recreational centre. The Motorhome had stopped because of the collision; but almost immediately it fled the scene and continued to travel east on the Old Island Highway towards Victoria, British Columbia. A witness to the rear-end collision, Joshua Otten, who was driving another vehicle followed the Motorhome in pursuit. Mr.

Otten maintained an open telephone call to 911 to update the 911 dispatchers on his pursuit location and that of the Motorhome along with the Motorhome's vehicle licence plate number. [ 26 ] The Westshore detachment of the RCMP apparently was called by a witness to the collision. Police Constable Tyson Taylor was dispatched at around 9:15 a.m. to the scene of the collision on the Old Island Highway. There, he attended to Ms. Petronis who did suffer some injuries.

Names or statements were taken from witnesses at the scene. [ 27 ] The traffic division of the Saanich Police Department was also dispatched around 9:22 a.m. because of other reports to the police of multiple hit-and-run incidences in their municipality involving a similarly described vehicle to that of the Motorhome. [ 28 ] Constable Paul Egli, of the Saanich Police heard the dispatch and, at approximately 9:40 a.m., proceeded westerly along Royal Oak Drive past Broadmead Shopping Centre onto the overpass crossing the Patricia Bay Highway to the intersection of Elk Lake Drive.

There, he encountered a motor vehicle meeting the description of the Motorhome heading south in the opposite direction and which was in the process of completing a left-hand turn onto Royal Oak Drive. [ 29 ] The Motorhome had significant front-end damage. It bore the licence plate number "CM2 97C". It is agreed by Crown and Defence that the motor vehicle observed by PC Egli was, in fact, the Motorhome. There was a male driver and no passengers visible in the Motorhome. At 9:45 a.m., PC Egli turned on his marked police car’s emergency lights, completed a 180-degree turn to allow him to follow the Motorhome.

The Motorhome pulled over and came to a stop at the nearby bus transportation exchange. [ 30 ] Constable Egli arrested the Accused as he was exiting from the Motorhome on the right hand passenger side and took him into custody. [ 31 ] In the course of the police investigation, Constable Tyson Taylor photographed the Lexus that had been rear-ended. The photographs were taken at the scene of the collision. [ 32 ] A number of photographs of the Motorhome were taken by another member of the Saanich Police at the location where Constable Egli stopped the Motorhome.

Those photos were taken while Constable Egli was present. [ 33 ] Both sets of photos were admitted as exhibits. The Crown's Case [ 34 ] Crown called two police officers and six civilian witnesses to testify. The civilian witnesses were Paula Calla, Christine Petronis, Meagan Mbao, Stephen Knocke, Dennis Taylor, and Marianne Rados. The police constables who were called were Constable

Taylor and Constable Egli. Evidence of Christine Petronis [ 35 ] Ms. Petronis testified that immediately prior to the accident, she was driving in the curb lane just approaching the Juan De Fuca Recreational Centre. She further testified about her silver-grey Lexus SUV being hit from behind by a “large box of a vehicle” which she observed after turning around to look following the collision. She testified that the vehicle had hit her was going very fast. Her Lexus was pushed ahead by the collision.

She completed a turn into Juan De Fuca Recreational Centre and stopped. [ 36 ] She thought that vehicle that struck her was going to stop at the scene, but to her amazement, it did not and that vehicle had to drive up onto the sidewalk in order to leave the scene. Her Lexus sustained significant damage to the rear end, had its rear window smashed out, and ultimately was written off by ICBC because of frame damage. She described the event as “terrifying,” especially since her young granddaughter was in her car seat in the rear passenger seat. Ms.

Petronis suffered some physical injuries requiring physiotherapy and a lot of emotional trauma that required counselling. Evidence of Paula Calla [ 37 ] Ms. Calla was driving beside the Lexus being operated by Ms. Petronis. She heard a screech and heard the car beside her, being the Lexus, being hit and observed it being pushed forward. She described the vehicle that struck the Lexus as being an older style RV “mobile home,” and not a travel trailer. She estimated it was 26 to 30 feet long. She described it as being two tone and bronze in colour.

She observed that vehicle continue to drive away with parts falling off of it. She stopped at the scene and rendered assistance to the driver of the Lexus and the child passenger. [ 38 ] Ms. Calla was behind the Motorhome as it was turning onto Old Island Highway from Wale Road very shortly before it was involved in the rear end collision. She confirmed the Motorhome's identification from the exhibited photographs. She did not see the driver of the Motorhome. Evidence of Stephen Knocke [ 39 ] Mr. Knocke was driving westbound along Old Island Highway in the opposite direction as the grey Lexus and the Motorhome.

He was in the left lane and was stopped in a line of cars one car back from a pedestrian-operated traffic signal crosswalk. He was waiting to make a left-hand turn into the Juan De Fuca Recreational Centre when the rear-end collision occurred and the Lexus was pushed forward. The Motorhome was travelling in a direction towards Mr. Knocke and had to pass him to continue eastbound on the Old Island Highway.

He identified the vehicle that struck the rear of the Lexus as the Motorhome. [ 40 ] The Motorhome stopped very briefly after the collision and departed after five to 10 seconds, passing on the right of the Lexus and then accelerating as fast as possible continuing down the Old Island Highway. Mr. Knocke says that he and the driver of the Motorhome exchanged looks as the Motorhome passed close by him. Mr. Knocke pursued the Motorhome in his vehicle, but due to the speed of the Motorhome, he abandoned the pursuit and was unable to get the license number. He only observed one male in the Motorhome.

He called 911 to report the incident. [ 41 ] It is agreed by both Crown and defence counsel that based on the law of in-court identification and the applicable procedure for in-court identification as explained in R. v. Thomas , [2017] B.C.J. No. 1390, 2017 BCPC 212 , and as a result of comments made by Crown counsel during the course of that in-court identification made by Mr. Knocke, that any in-court identification of the person whom Mr. Knocke says was the driver of the Motorhome is inadmissible and accordingly, is to be ignored by the court.

I can confirm that this approach has been adopted by me in terms of my analysis and in reaching my conclusions. Evidence of Joshua Otten [ 42 ] Mr. Otten works in the area near by the initial collision near the recreation centre. He is a body man estimator for ICBC. He was driving in the left lane of Old Island Highway with the Motorhome on his right side. [ 43 ] He observed the rear-end collision. He saw the Motorhome leave the scene. Mr. Otten followed the Motorhome in his own vehicle as it continued down the Old Island Highway towards the Trans-Canada Highway.

The driver of the Motorhome failed to comply with Mr. Otten’s signals to pull over. The Motorhome reached estimated speeds of 70 kilometres in a 50-kilometre speed zone. [ 44 ] Mr. Otten followed the Motorhome as it pulled onto the Trans-Canada Highway merge lane and continued up to the Helmcken Road Overpass. The Motorhome exited, crossed over the overpass and continued along to the intersection of Interurban Road where Mr. Otten observed the Motorhome pull into the oncoming traffic lane and to go through a red light.

In the process of doing so, the Motorhome collided with a black pickup truck pulling a trailer. [ 45 ] The Motorhome then continued east along Wilkinson Road. Mr. Otten continued to follow the Motorhome along Wilkinson Road until such time as it was forced to detour off Wilkinson Road onto Mann Road because of a bridge repair, and then the Motorhome continued down Mann Road and made a left-hand turn onto Glandford Road. [ 46 ] At that point, the Motorhome then made another left-hand turn onto a road which Mr. Otten thought was called Quadra Street.

The Motorhome continued along that road, all on the west side of the Patricia Bay Highway, to West Saanich Road and then towards the intersection of Wilkinson Road. At that point, the Motorhome appeared to continue along West Saanich Road. Mr. Otten lost sight of the Motorhome which was some 150 feet in front of him because of intervening traffic and a bend in the road. Mr. Otten did not observe the Motorhome turn into Commonwealth Pool Centre. [ 47 ] Mr.

Otten testified that he believed it was a distance of some 10 kilometres from where the initial collision had occurred outside the Juan De Fuca Recreational Centre, and where he started his pursuit of the Motorhome, until he lost sight of it and further that it took approximately 20 minutes of time.

[ 48 ] During the period of his observations of the Motorhome, Mr. Otten described the Motorhome as being driven "erratically, speeding and belligerent to all of the rules of the road." [ 49 ] Mr. Otten could not identify the driver of the Motorhome. Evidence of Meagan Mbao [ 50 ] On the day of these incidences, Ms. Mbao was driving in a westerly direction on Wilkinson Road towards Royal Victoria Hospital. She reached the five-point intersection at Interurban Road. She places the time at between 9:20 and 9:40 a.m.

She was starting to go through the intersection on a green light. [ 51 ] She observed the Motorhome, which she identified in the exhibit photos, coming in the opposite direction towards her in her lane through the intersection. Then she observed the Motorhome cut back to its right colliding with the front end of a pickup truck that was proceeding in the opposite direction to her along Wilkinson Road. The Motorhome did not slow down or stop, but sped up and continued along Wilkinson Road in the direction from which she had come.

It was being driven fast and was rocking from side to side. [ 52 ] She only caught a brief glance of the Motorhome driver whom she testified was a Caucasian male, “late 20-30s-early 40s”. She conceded in cross-examination that in her police statement she did not say, “early 40s,” but did say, “late 20-30s”. She admitted that she would not be able to recognize the driver. Evidence of Dennis Taylor [ 53 ] Mr.

Taylor was driving his black Ram pickup truck towing a full size 14-foot utility dump trailer eastbound and proceeding on a green light when the Motorhome passed him on the left, cut in front of him and struck the front-left fender bumper, and struck the left side mirror on his pickup truck. Mr. Taylor’s vehicle stopped. The Motorhome failed to stop and continued east on Wilkinson Road. He did not see the driver of the Motorhome. A female witness in the area called the police. Evidence of Marianne Rados [ 54 ] Ms. Rados was travelling in her car on Wilkinson Road towards the black pickup truck.

She was stopped trying to make a left- hand turn onto Interurban Road, she was on her way to take her child to daycare. She heard a rumbling loud noise, stopped her left-hand turn, and a large older model motorhome vehicle, which she described as possibly brown in colour and travelling fast through the intersection, "swooshed past" her own vehicle, in front of her on her left side. She saw something fall off of the black pickup truck and then, through her side mirror, observed that the Motorhome continued without stopping past the pickup truck and along Wilkinson Road.

She was unable to see or identify the driver of the Motorhome. Evidence of Constable Egli [ 55 ] Constable Egli testified that following the Motorhome being stopped by him, he called for police backup and “cover.” He considered this to be a high-risk situation. When the driver of the Motorhome started to exit the Motorhome from the right passenger door, Constable Egli instructed him to stay in and throw out his keys. The driver was compliant. [ 56 ] As the police cover arrived, Constable Egli arrested the driver who, as it turned out, was the Accused.

He told the Accused he was being arrested for dangerous driving. Following his arrest, the Accused was chartered and warned and advised of his right to counsel. The Accused declined counsel. [ 57 ] Defence takes no issue with the arrest and what followed thereafter. [ 58 ] The Accused made a voluntary statement to Constable Egli following his arrest. The Accused said as follows, “Listen dude, I panicked, I got scared. You are about to take my home away from me.” [ 59 ] Constable Egli conducted a roadside sobriety test.

The Accused did not appear to be impaired by alcohol or drugs. [ 60 ] In cross-examination, Constable Egli confirmed that the Motorhome was coming from the direction of the Commonwealth Pool which was about two blocks away and in a direction behind the Motorhome. Constable Egli further confirmed that he lives in the area where the first collision occurred out near the Juan De Fuca Recreational Centre and that the usual driving time from that location to where he stopped the Motorhome would take approximately 12 to 15 minutes if there was no traffic.

The Defence's Case [ 61 ] The sole witness for the defence was the Accused himself, Shane Michael Smith. Evidence of Shane Michael Smith [ 62 ] The Accused describes himself as being 45 years of age, working as a mechanic for a local trucking firm, and he admits to a criminal record dating back to 1996. His most recent conviction was in February 2nd in 2015 for a breach of an undertaking or a recognizance. He admits to having lost his driver's license at age 16 as a result of a prohibition imposed upon him.

He has a criminal conviction from - 1997 for operating a motor vehicle while disqualified, he was subject to a 3 month conditional sentence order and received a Criminal Code driving prohibition for 12 months. [ 63 ] At the time of events of November 25th, 2016, he had a driver’s license and had some experience driving larger vehicles, namely, a three-ton wood truck. [ 64 ] In November of 2016, the Accused was unemployed and living in the Motorhome that he parked over nights in the Langford Walmart parking lot.

On occasion, Randy Linton, a homeless person, whom the Accused says was “not really a friend," stayed with him

a couple of times per week. Randy Linton had spent the night of November 25th, 2016, in the Motorhome with the Accused. [ 65 ] The Accused says that he drove the Motorhome from the Walmart parking lot to the Commonwealth Pool in the presence of Randy Linton, on November 26th, 2016, in order to meet up with his lady friend, Lana Valan, whom he had known and been "tight" with for years. The purpose of the meeting was to allow him to swim and shower. Ms. Valan had a gym membership at the pool complex. He says he arrived there around 8:00 a.m.

He testified that Randy Linton then left immediately at 8:00 a.m., driving the Motorhome in order to return to a storage locker that he possessed somewhere in Langford. [ 66 ] The Accused testified that while he and Lana Valan were waiting at Commonwealth Pool, Randy Linton returned at approximately 9:30 a.m. with the Motorhome. Mr. Linton told the Accused that he had been in a “fender-bender accident” and further told the Accused that he should get the Motorhome back to Langford and get it parked.

I take it that "back to Langford" meant the Walmart Parking lot in that community. [ 67 ] Randy Linton left the keys to the Motorhome with the Accused and then departed immediately, apparently without further explanation. The Accused says that Randy Linton provided no other information about the accident. [ 68 ] The accused says that he came out to the Motorhome and noticed damage to the front bumper. He did not go around the Motorhome to observe any other damage. He says that he made a decision to drive the Motorhome back to Langford from the Commonwealth Pool.

He departed and was driving the Motorhome when he was stopped by Constable Egli. He pulled the Motorhome over immediately. [ 69 ] The Accused denies that he knew anything about the driving incidences that are the subject matter of the charges. He denies that he was driving the Motorhome when the accidents occurred. He says that he was unaware of any of the circumstances giving rise to these incidences that resulted in his arrest. He says that he knew that the Motorhome was uninsured and not properly licensed or registered in his name in British Columbia, but rather had come from an estate in Alberta.

He also said that he knew that the B.C. licence plates on it were not issued for the Motorhome. He says that he only started to drive the Motorhome from the Commonwealth Pool because he “panicked” and wanted to get the Motorhome back to the Walmart parking lot in Langford. [ 70 ] He denied that he was making up a story about being at the Commonwealth Pool with Ms.

Valan immediately before his departure. [ 71 ] He confirmed that he did not mention to Constable Egli about Randy Linton having driven the Motorhome and having just returned it to him at the Commonwealth Pool saying, by a way of explanation, that he was “not going to rat my friend out.” The Accused said that based upon past involvement with the police that it is best not to say anything to the police. [ 72 ] The Accused further testified that Randy Linton was present at the courthouse on the first day of the trial and Mr. Linton was going to testify on behalf of the defence.

The Accused testified that he was uncertain now where Randy Linton was on the last day of the trial and uncertain why he did not show up to testify. The Accused concluded his own testimony with a comment to the effect that, “If my buddy is not willing to come and to tell what happened, then I will have to take the fall for it.” [ 73 ] The Accused confirmed that he had purchased the Motorhome from a friend in Duncan who had bought it from an estate in Alberta.

He confirmed that he had driven the Motorhome to the Commonwealth Pool a couple of times, knowing from his discussions with ICBC that the Motorhome was not licensed, nor properly registered, and was uninsured. Submissions [ 74 ] Both Crown and defence agree that the analysis as set out in W.(D.) applies to this case.

It is also common ground that there are no material issues with the evidence of any of the Crown witnesses. [ 75 ] Both Crown and defence agree that this case will turn first on the credibility of the Accused and his story that he has proffered about his whereabouts during the incidences giving rise to the charges and his denial of any participation in those events. The analysis of that story will be subject to the W.(D.) formulation. Both Crown and defence agree that I must also determine whether or not Crown has, on the whole of the evidence that I do accept, proven its case beyond a reasonable doubt.

Crown's Position [ 76 ] Crown submits that I should reject all of the evidence of the Accused as being both unreliable and not credible. Crown indicates that the evidence of the Accused of his whereabouts and his lack of involvement during the driving incidences simply does not make any sense.

Crown says that I should reject the evidence of the Accused and when applying the W.(D.) formulation, conclude that there is no evidence that I can accept or should accept from the Accused nor any other evidence that raises a reasonable doubt. [ 77 ] Crown then submits that the essential elements of the offence have been proven by the evidence of the Crown witnesses who have testified in this matter.

Crown places particular emphasis on the fact that the Accused failed to make any comments or statements to Constable Egli about the fact that he had not been previously driving the Motorhome when told he was being arrested for dangerous driving nor that it was his friend Mr.

Linton who had actually been the driver of the Motorhome in the time frame immediately before the Accused started to drive it. [ 78 ] Hence, Crown says that evidence forming part of the Crown's case discharges the burden of proof on Crown and that all of the elements of the offences have been proven beyond a reasonable doubt including the identification of the Accused as the driver the Motorhome at the time that the offences occurred.

The fact that the Accused was arrested by Constable Egli, immediately after he was seen driving the Motorhome and then alighting from it following the police stop, all within the timeframe laid out in Constable Egli’s testimony, raises a very strong case and provides a sufficient amount of evidence in order for the court to be satisfied that the only possible driver of the Motorhome while it was being operated during these events and while the commission of the offences was occurring, in fact, was the Accused.

Defence Submission [ 79 ] Defence portrays the evidence of the Accused, Mr. Smith, as being straightforward and that evidence presents a reasonable explanation of what occurred. I am urged to accept the evidence of the Accused on the basis that it is internally and externally consistent with other evidence including the location where Mr. Smith says he was, namely, the Commonwealth Pool, at the time that the accidents giving rise to the charges had occurred. Therefore, I am being urged to accept Mr.

Smith's version of his whereabouts during the events and his lack of knowledge about the various incidences that occurred and which gave rise to the charges. [ 80 ] Defence also submits that even if I do not accept the evidence of Mr. Smith that on the W.(D.) formulation there is still sufficient evidence for there to be a reasonable doubt. Also, defence says that the Crown's case is based solely on circumstantial evidence as to who the driver was.

Defence says that there are other reasonable explanations from all of the attending evidence as to who was driving the Motorhome at the time that the various accidents occurred, that being a person other than the Accused. Thus Defence submits that the explanation offered by the Accused is satisfactory in order to raise an acceptable alternative explanation as to who was driving or at least raise a reasonable doubt. Analysis [ 81 ] I note that Randy Linton was apparently present on the first day of trial, but he did not testify during the trial.

I also note that Lana Valan was briefly before the court immediately before the commencement of the January 5th, 2018, continuation. Neither individual testified.

No adverse inference is draw about the fact that neither was called nor testified, notwithstanding that their names were mentioned frequently in the testimony of the Accused. [ 82 ] Taking all of the circumstances into account from the evidence that I do accept as credible and reliable, I find that the explanation offered by the Accused as to his whereabouts during the events that took place giving rise to the charges, while convenient, is very unconvincing. Contrary to defence's submissions, on the whole of it, that explanation lacks a necessary ring of truth. The explanation offered by Mr.

Smith does not make much sense. [ 83 ] First of all, he describes how he lent out his Motorhome to an individual who he knew, but, according to his earlier evidence, he did not consider to be a particularly close friend. I accept that the Motorhome was of particular importance to the Accused because it was his only source of shelter. [ 84 ] Next, he indicated that when the Motorhome was returned to him, the Accused was told by Mr. Linton that there had been damage to the Motorhome because it had been in an accident, which Mr.

Linton apparently described to the Accused as a "fender- bender." Thereafter, according to the Accused, Mr. Linton immediately left without further explanation or details about that accident and prior to Mr. Smith conducting his own examination of the Motorhome damage while in the presence of Mr. Linton. According to Mr.

Smith, he then walked over to his parked vehicle and observed what is clear from the photographic evidence to be significant damage to the front of the Motorhome. [ 85 ] However, the explanation that he then panicked when he saw the damage and then decided to drive the Motorhome back towards the Walmart parking lot in Langford, in my view, makes no sense.

The other inference that reasonably may be drawn from this driving of the Motorhome at the time he was stopped by Constable Egli is that the Accused was attempting to continue to evade further detection by any individuals who might have been following him from the initial collision in Colwood or from the collision that occurred at the intersection of Wilkinson Road and Interurban Road. [ 86 ] In my view, notwithstanding the right to silence, Mr.

Smith's failure to offer any sort of explanation to Constable Egli after the police stop, as to his whereabouts or who was driving the Motorhome immediately prior to him starting to drive it does not make sense. He clearly was informed by Constable Egli that he was being arrested for dangerous driving. At that point, he had an opportunity to at least explain by way of an exculpatory statement that he was not the driver being sought for dangerous driving, especially since none of the Accused’s driving that could have been observed by Constable Egli amounted to anything approaching dangerous driving.

All he does say is words to the effect that “I panicked, I got scared” and then expressed concerns about losing his Motorhome. [ 87 ] I also find it peculiar and unconvincing that he should choose to drive the Motorhome back to Langford with the extensive body damage, especially given his own evidence about the importance of the Motorhome to him. Notwithstanding the fact that the Motorhome was uninsured and unlicensed, it seems to make more sense for him to have taken some steps in order to have the authorities contacted about the extensive damage to the body of the Motorhome, once the Accused had observed it.

His explanation and his contention that he was not the driver of the Motorhome during the resulting collisions remains totally uncorroborated by any other evidence. Thus, for all of the reasons noted above, I do not believe the Accused and there is no reasonable doubt about the Accused being the driver of the Motorhome at the material times. Conclusions and Decision [ 88 ] Accordingly, I find Mr.

Smith guilty: on Count 1 being his dangerous driving observed by the Crown witnesses as he fled the scene immediately following his Motorhome’s collision with Christine Petronis’ vehicle in Colwood and then continuing his flight up to and then immediately following the collision with Steven Turner’s pick-up in Saanich; on Count 2, being his failure to stop, provide required information and assistance after his collision with Christine Petronis’ vehicle; and on Count 3 being his failure to stop, provide required information and assistance after his Motorhome’s collision with Dennis Taylor’ s pick-up truck at the intersection of Interurban Road and Wilkinson Road in Saanich. [REASONS FOR JUDGMENT CONCLUDED]