R v Thijs, 2022 ABKB 608

Court of King’s Bench of Alberta Citation: R v Thijs, 2022 ABKB 608 Date: 20220908 Docket: 200483329Q1 Registry: Calgary Between: Her Majesty the Queen Crown - and - Weinieke Hendrik Jewel Thijs Accused _______________________________________________________ Reasons for Judgment of the Honourable Justice B.B. Johnston _______________________________________________________ 1. Introduction [ 1 ] On September 23, 2019, Mr. Kiven Ross was driving home from an Alcoholics Anonymous (“AA”) meeting, when his motorcycle collided with a Honda Pilot. Mr. Ross tragically died at the scene of the accident.

His common law spouse was travelling in a vehicle behind him and witnessed the accident. The Accused, Weinieke Thijs, was driving the Honda Pilot. The Accused had consumed three beers and a boot mickey of vodka prior to the collision. [ 2 ] The Accused is charged that on or about the 23 rd day of September 2019 at or near Calgary, Alberta: 1. while committing an offence under

Section 320.14(1)(b), did cause the death of Kiven Ross, contrary to

Section 320.14(3) of the Criminal Code of Canada . 2. while committing an offence under

Section 320.14(1)(a), did cause the death of Kiven Ross, contrary to

Section 320.14(3) of the Criminal Code . 3. did commit an offence under

Section 320.16(1) and at the time of committing the offence knew, or was reckless as to whether, the accident resulted in the death of another person or in bodily harm to another person whose death ensued, namely Kiven Ross, contrary to

Section 320.16(3) of the Criminal Code . [ 3 ] In a voir dire , I ruled that the Accused’s statement given to the police was voluntary. [ 4 ] The Crown called seven witnesses and one expert. The Defence called one expert witness and the Accused testified.

II. Background A. Agreed Facts [ 5 ] Some of the agreed facts admitted include that: • On September 23, 2019, at approximately 20:47 hours, a fatal injury collision occurred at the intersection of Peigan Trail and 36th Street SE in Calgary, AB (the “Collision Scene”). • The collision involved a silver 2018 Harley Davidson motorcycle driven by Mr.

Ross and a red 2005 Honda Pilot driven by the Accused. • Constable Dennis Vink, a certified collision reconstructionist with the Calgary Police Service, (“CPS”), attended the Collision Scene at 22:50 hours on September 23, 2019, to conduct a scene examination in preparation of the Collision Reconstruction Report. The integrity of the Collision Scene was maintained.

Constable Vink’s expert qualifications in motor vehicle collision analysis and reconstruction are admitted. • The scene diagram drawn by Constable Vink and the survey measurements used in the scene diagram are admitted as accurate and reliable. • Constable Vink prepared a map showing the area of impact where the Harley Davison and the Honda Pilot collided and a map showing the post collision path of travel of the Honda Pilot. • No mechanical faults related to the Honda Pilot or the Harley Davison contributed to the collision. • Mr. Ross died as a result of injuries sustained in the collision.

He was pronounced dead at the Collision Scene. • The Medical Examiner concluded that the cause of Mr. Ross’ death was multiple injuries suffered due to blunt force trauma following a vehicular collision. The cause of death is admitted by the Accused. • At 21:47 hours and 22:08 hours on September 23, 2019, the Accused provided two samples of breath into an approved instrument operated by a qualified technician, Constable Rana.

Both samples of breath measured 170 milligrams of alcohol in 100 millilitres of blood. • Before each sample was taken, the qualified technician conducted a system blank test, the result of which was not more than 10 milligrams of alcohol in 100 millilitres of blood, and a system calibration check, the result of which was within 10 percent of the target value of an alcohol standard that was certified by an analyst. • The Certificate of Qualified Technician and the Certificate of an Analyst are admitted for the truth of their contents. Their authenticity, reliability and accuracy are also admitted. B.

Criminal Code Provisions [ 6 ] Sections 320.14(1) and (3) and 320.16(1) and (3) of the Criminal Code , RSC 1985, c C-46 , provide as follows: 320.14(1) Everyone commits an offence who (

a) operates a conveyance while the person's ability to operate it is impaired to any degree by alcohol or a drug or by a combination of alcohol and a drug; (

b) subject to subsection (5), has, within two hours after ceasing to operate a conveyance, a blood alcohol concentration that is equal to or exceeds 80 mg of alcohol in 100 mL of blood; (...) 320.14(3) Everyone commits an offence who commits an offence under subsection (1) and who, while operating the conveyance, causes the death of another person. (...) 320.16(1) Everyone commits an offence who operates a conveyance and who at the time of operating the conveyance knows that, or is reckless as to whether, the conveyance has been involved in an accident with a person or another conveyance and who fails, without reasonable excuse, to stop the conveyance, give their name and address and, if any person has been injured or appears to require assistance, offer assistance. (...) 320.16(3) Everyone commits an offence who commits an offence under subsection (1) and who, at the time of committing the offence, knows that, or is reckless as to whether, the accident resulted in the death of another person or in bodily harm to another person whose death ensues. [ 7 ] In addition, bodily harm is defined in

section 2 as “any hurt or injury to a person that interferes with the health or comfort of

the person and that is more than merely transient or trifling in nature”. III.

Summary of Relevant Evidence A. Crown Witnesses [ 8 ] The following witnesses testified for the Crown: 1. Susan White [ 9 ] Ms. White was the common law spouse of Mr. Ross. On September 23, 2019, Mr. Ross was attending an AA meeting. Ms. White attended the meeting to provide support. [ 10 ] After the meeting, Ms. White was driving her van and Mr. Ross was driving his motorcycle. Mr. Ross moved in front of Ms. White. She continued to follow behind him. They travelled from 8th Avenue, turned onto 52nd Street and continued travelling south toward Peigan Trail. They turned onto Peigan Trail westbound.

There were no vehicles between Ms. White and Mr. Ross. Ms. White was “probably a good two car lengths” behind Mr. Ross. [ 11 ] Ms. White testified that both she and Mr. Ross were travelling at a speed of about 60 km/h when they approached the intersection of Peigan Trail and 36th Street. She was able to determine the speed at which Mr. Ross was travelling because the distance between Ms. White and Mr. Ross did not change. [ 12 ] As they approached the intersection at 36th Street, Ms. White and Mr. Ross had a green light, so they had the right of way.

She saw a red vehicle approaching which appeared to be travelling in excess of 60 km/h. The red vehicle continued at the same fast speed around the corner and did not stop. Ms. White testified that the red vehicle did not slow down. [ 13 ] The red car hit Mr. Ross on the left side of his motorcycle. [ 14 ] After the collision, Ms. White parked her van in the intersection to block traffic. Mr. Ross was not on his motorcycle but was against the curb face down. [ 15 ] Ms. White called 911. [ 16 ] The collision occurred around 8:30 to 8:40pm. It was a clear evening. It was dark but the road was lit. 2.

Adam Ward [ 17 ] Mr. Ward lives in a second-floor apartment that is one-half block north of Peigan Trail. At approximately 8:45pm on September 23, 2019, he was sitting on his couch watching TV. His windows were open. He heard a noise. He walked to his balcony which overlooks 36th Street and Erin Woods Court. [ 18 ] He did not see the actual collision, but saw a motorcycle tipped over at the intersection of 36th Street and Peigan Trail. Mr. Ward saw a red SUV in the intersection after the collision occurred.

He then heard the screeching of the tire, coming northbound and screeching all the way around to the Petro-Canada. He saw a black truck following the red SUV. [ 19 ] Mr. Ward testified that “hearing a screeching tire that can’t rotate anymore is quite a loud noise” and “he could hear it until he couldn’t,” so his belief was the red SUV did not get very far. [ 20 ] After giving a statement, he and his roommate went for a walk. Mr. Ward observed that the red SUV made its way to the other side of the Petro-Canada. Mr. Ward observed a lot of coolant on the ground and saw that the tire was severely damaged. [ 21 ] Mr.

Ward saw that the front side of the red SUV travelling north on 36th Street was totalled. The tire was damaged to the point where the control arm was no longer functioning and had dropped onto itself. The tire was no longer moving and would not rotate. The tire was up in the wheel well and was blown and flat. [ 22 ] Mr. Ward did not see the driver but with the condition of the vehicle in such bad shape, he expected it to drive poorly. [ 23 ] In cross-examination, Mr. Ward stated that the red SUV was completely stationary when he saw it. It was in the intersection and stopped prior to going again.

He confirmed the screeching he heard was related to the inability to move that tire and was rubber on pavement. The red SUV was then moving but he could not tell the speed. However, he noted the vehicle was not trying to move intermittently. It was moving steadily. [ 24 ] The bulk of the damage to the red SUV was on the right front passenger side. There was damage to the bumper and fender. [ 25 ] The black truck was far enough up 36th Street that it would have witnessed something. [ 26 ] When Mr. Ward came out of his apartment, there were no other vehicles. 3. Shaun Goshulak [ 27 ] On September 23, 2019, Mr.

Goshulak was on his patio at his third-floor apartment complex that overlooks 36th Street. He

heard a bang and saw a crash scene. [ 28 ] He saw a red SUV with the passenger side wheel turned in 90 degrees. It was driving north on 36th Street and was moving slowly. A black truck was following the red SUV. He last saw the red SUV turning east onto Erin Woods Boulevard. The red SUV tire was turned in and it was screeching along the pavement. [ 29 ] He did not see the driver of the red SUV. [ 30 ] Mr. Goshulak went to the scene of the accident because he noticed another vehicle following the red SUV.

When he arrived, the police and EMS had not yet arrived on the scene. [ 31 ] After hearing the bang, it took him about 30 seconds to put on his clothes and come down the stairs. He estimated he arrived at the scene within about a minute to minute and half. 4. Homan Chung [ 32 ] Mr. Chung was driving home from volleyball on September 23, 2019, when he witnessed a collision shortly after 8:30pm. He was heading north on 36th Street, intending to turn left on Peigan Trail.

He was in the turning lane and had a red light. [ 33 ] There was a vehicle in front of him, so he did not see the crash but heard the collision and saw a fire in the intersection. There were no vehicles behind him. [ 34 ] Mr. Chung testified that he was not waiting very long at the intersection at the red light. [ 35 ] He saw the vehicle involved in the collision travel north on 36th Street. That vehicle was being chased by the vehicle in front of him. [ 36 ] He immediately went to assist the motorcyclist who was on the northwest corner of the intersection on the grass. [ 37 ] Mr. Chung observed Mr.

Ross laying face down. He was the first person to arrive. [ 38 ] Mr. Ross was non-responsive. Mr. Chung was instructed to flip him over by EMS. Mr. Chung stayed with Mr. Ross until EMS arrived. [ 39 ] At the time of the accident, the weather conditions were normal with no rain or snow. It was starting to get dark, but the intersection was well lit. [ 40 ] In cross-examination, Mr. Chung confirmed he had a red light. He estimated he was waiting around 5-6 seconds at the light before hearing the collision, but he could not recall precisely. He came to a complete stop. [ 41 ] Mr. Chung did not recall an amber light.

Because he was sitting there, he assumed it was red. He was the second vehicle at the intersection. He got to the left turn lane at the intersection, the light was red for him, and he heard a bang. He could not see the lights going east/west. 5. Louis Kopfensteiner [ 42 ] Mr. Kopfensteiner was travelling north on 36th Street in a silver/gray F-150 and stopped in the left-hand turning lane at the red light on 36th Street to turn left. There were no vehicles in front or behind him. The weather was clear that evening. [ 43 ] He noticed a motorcycle coming from the east and then there was a collision.

He saw a red SUV attempting to turn left onto 36th Street when a collision occurred at approximately 8:45 pm. [ 44 ] The red SUV had been in the left turning lane. He did not see what part of the SUV hit the motorcycle as it happened fast. [ 45 ] Mr. Kopfensteiner was waiting in the intersection for maybe 30 seconds before the collision. He called 911. He noticed a van stop right behind the bike. [ 46 ] Mr. Kopfensteiner testified that the driver hesitated for a second, then the SUV took off northbound on 36th Street, so he decided to follow him. The SUV did not attempt to stop.

The SUV ran over the motorcycle, went over the meridian where the sign was, took down the sign and kept going up the hill. The meridian was in the middle of the road. When the red vehicle finally made the turn onto 36th Street, one of the tires was in pretty bad shape. The vehicle was hobbling up the hill. [ 47 ] Mr. Kopfensteiner followed the SUV to the next block. The SUV turned right at the lights. The SUV came to a stop after it turned just after the Petro-Canada. [ 48 ] Mr. Kopfensteiner never lost sight of the SUV. The SUV was not travelling fast.

The driver had a hard time controlling the vehicle because the left front tire was just hanging there. He was more or less driving on three wheels. [ 49 ] The driver of the SUV did not engage his signal light. [ 50 ] The SUV stopped in the middle of the road after the gas station. Mr. Kopfensteiner stopped right behind the SUV. [ 51 ] The driver of the SUV got out of the vehicle on the driver side and started to run eastbound. He got about 10-15 feet away. Mr. Kopfensteiner told him to stop, and he did. Mr. Kopfensteiner asked where he was going. The driver of the SUV said he lived nine

houses away. Mr. Kopfensteiner told him to get back and to sit down. The driver stayed on the sidewalk in Mr. Kopfensteiner’s sight until CPS arrived. [ 52 ] The driver of the SUV kept saying “the bike hit me” repeatedly. Mr. Kopfensteiner asked him why he ran if the bike hit him. [ 53 ] Mr. Kopfensteiner testified that the driver had some alcohol in him and was “not 100% straight.” Mr. Kopfensteiner was face to face with him but does not recall if he smelled like alcohol. [ 54 ] On cross-examination, Mr.

Kopfensteiner testified that he never saw or does not recall seeing an amber light as he approached the intersection. He was stopped at the light for maybe 30 seconds but agreed that it could have been 10-12 seconds. He was the first car and no one was behind him. The accident happened before his light turned green. [ 55 ] He recalls the impact was 5-10 seconds or 10-15 seconds after he stopped at the red light. The red SUV was at a complete stop when he saw it.

The red SUV did not appear to be in any hurry. [ 56 ] The red vehicle was stopped in the turn lane going left onto 36th Street, then about 5 to 15 seconds later he heard the collision. [ 57 ] The collision happened within 1-2 or 2-3 seconds after he saw the SUV make the left turn. [ 58 ] Mr. Kopfensteiner believes that his light was still red when he decided to follow the driver of the SUV. [ 59 ] Mr. Kopfensteiner agreed that the driver was more or less in shock. [ 60 ] He also confirmed the red SUV was stopped at the turn lane on Peigan Trail for a few seconds before it started. [ 61 ] Mr.

Kopfensteiner identified the Accused as the driver of the SUV. 6. Constable Michael Bryce [ 62 ] On September 23, 2019, Constable Bryce attended an incident at 36th Street and Peigan Trail, arriving at approximately 20:50 hours. He and his partner were the first emergency responders to arrive at the scene. When they arrived, there was a group of people standing on the NW side of the intersection. He saw a motorcycle on its side and a male laying on his back positioned just before the southbound lane of 36th Street and Peigan Trail, near the grassy median. [ 63 ] Mr. Ross was injured.

Constable Bryce checked for a pulse but did not find one. His partner performed CPR until EMS arrived. Constable Bryce remained on the scene until approximately 10:40 pm. 7. Constable Janelle Smith [ 64 ] Constable Smith was dispatched to Erin Woods Court. She was made aware that a vehicle had left the scene. She arrived at 20:57. Her body-worn camera captured her interactions with the Accused. [ 65 ] When Constable Smith arrived, she saw a silver truck and a red Honda Pilot pulled over a little over a block down Erin Woods Boulevard. There were two people standing around the vehicle.

She approached the Accused and was advised by the bystanders that he was the driver of the vehicle. She said that the Accused appeared shocked and surprised because he had a blank expression and kept saying “wow”. The Accused was slow to respond to Constable Smith’s approach and to her questions, his eyes appeared glassy and wet, and he was unsteady on his feet. Constable Smith asked the Accused if he had consumed alcohol and he responded that he had three beers. [ 66 ] Constable Smith read the Accused the ASD demand. The Accused provided a breath sample. The screening device registered a fail at 20:59.

Constable Smith then placed the Accused under arrest, he was handcuffed and put in the back of the police vehicle. [ 67 ] Once in the enclosed space of her vehicle, Constable Smith could smell the alcohol on the breath of the Accused. According to Constable Smith, the Accused remained slow to respond to questions. [ 68 ] The Accused was provided with a Charter caution. He agreed that he understood his rights and declined to have a lawyer. [ 69 ] The Accused was transported to the District 4 police station, arriving at 21:22 hours.

While being transported he was provided a second Charter caution because Constable Smith had now been made aware that the driver of the motorcycle had died. The Accused indicated he did not want a lawyer after being Charter cautioned. [ 70 ] At District 4, the Accused provided two breath samples. The first was taken at 21:47 and the second at 22:08. [ 71 ] The Accused was then released at 23:08.

He had no way of getting home, so Constable Smith and her partner drove him to his residence which was about an 8–10-minute drive from Erin Woods Boulevard. [ 72 ] The Accused was dropped off at his residence at 23:21. [ 73 ] The Accused’s statement to the police was recorded on Constable Smith’s body-worn camera. I reviewed this evidence in detail but have not included a

summary in this section. 8. Constable Dennis Vink [ 74 ] Constable Vink was qualified as an expert in motor vehicle analysis and reconstruction. He arrived at the Collision Scene

about 30-45 minutes after the collision. When he arrived, he saw a motorcycle on its side in the intersection of Peigan Trail and 36th Street. Mr. Ross was in the NE corner of the intersection on the grassy

section on the boulevard. [ 75 ] Constable Vink noted gouge marks and scratching on the road in the area of impact and leading away from the area of impact continuing to the position of final rest. There was debris on the road. Small deposits of rust powder from the offending vehicle were found at the area of impact which helped identify the area of impact.

There were also tire marks running northbound on 36th Street. [ 76 ] He explained that a gouge mark is an indentation in the road caused when two vehicles come together violently. [ 77 ] A 2018 Harley Davidson and 2005 Honda Pilot were involved in the collision. [ 78 ] The posted speed limit for Peigan Trail east and westbound was 70 km/h and for 36th Street was 50 km/h. At 22:50, he noted the road surface was clear and dry. It was a clear evening with good visibility.

In his opinion, environmental factors were not a factor in the collision. [ 79 ] Based on the tire marks and fluid trail, the Honda Pilot carried on north and east from the point of impact into the south bound travel lanes. As it did so, it struck and mounted the centre median, then travelled along the concrete median for a distance.

The Honda Pilot then fully crossed over the median into the proper northbound lanes and continued along northbound 36th Street to Erin Woods Boulevard, where it turned east and came to a rest on Erin Woods Boulevard close to the Petro-Canada station. [ 80 ] He reviewed the photobook entered as an exhibit.

The fluid trail and tire marks were identified in the photos. [ 81 ] For the entire path of travel until the point of final rest of the Honda Pilot, the tire marks were those of a tire that was not spinning but sliding along because it is either not rotating or its rotation has been significantly inhibited. [ 82 ] The Honda Pilot had significant damage to the front left corner of the vehicle. The front left tire was tilted inwards at a 45- degree angle. This is the tire that left the tire mark from the point of impact.

Constable Vink also noted that the airbag deployed. [ 83 ] The motorcycle had more extensive damage to the left side. There was a transfer of red paint onto the front left and right forks of the motorcycle. [ 84 ] There were no braking tire marks heading into the intersection where the collision occurred, including from the motorcycle.

If there had been high speeds, he would have expected to see tire marks. [ 85 ] In his opinion, the motorcycle was a relatively large motorcycle and would have been traveling approximately 70 km/h based on the damage profile to the vehicles. [ 86 ] He was unable to determine the speed of the Honda Pilot before or after the collision, but he did not think that speed was a factor in the collision, meaning neither vehicle was travelling outside of the expected norm for roadway. [ 87 ] Constable Vink determined by using a walking wheel counter that the Honda Pilot travelled 491 metres from point of impact to the area of final rest. [ 88 ] In his opinion, the Honda Pilot turning left in front of the motorcycle was the primary cause of the collision.

There were no other contributing factors determined through his analysis of the scene or the evidence collected. [ 89 ] This conclusion was based on the fact that the Honda Pilot was travelling eastbound making a left-hand turn onto 36th Street. At the same time the motorcycle was travelling westbound on Peigan Trail going through the intersection at 36th Street. The Honda Pilot turned left into the path of the motorcycle causing or resulting in the collision. [ 90 ] He noted that the path of travel in the Honda Pilot’s left turn was shallower than he would expect.

The Honda turned much sharper and actually travelled from the eastbound travel lanes into the southbound travel lanes, then travelled along and then mounted and crossed over the centre meridian. [ 91 ] In cross-examination, Constable Vink acknowledged there were four lights, meaning there was an advance green arrow on the traffic control device at the intersection of 36th Street and Peigan Trail. He did not consider the light sequences because he was looking only at physical evidence and the cause of the collision.

He could not comment on the phase of lights, but he said, “the fact that the Honda Pilot turned into the path of the motorcycle was the primary cause of the collision.” As to assigning right of way, he did not know. He agreed that if the Honda Pilot had the green arrow, he is entitled to turn. [ 92 ] He acknowledged there could be some collision-induced redirection, but there was not much in this case given the driver’s wheel was struck in such a way that it canted inward.

The directionality of the impact is between straight on and a 45-degree angle. [ 93 ] He was unable to determine if the Honda hit the motorcycle or the motorcycle hit the Honda Pilot, but he could determine they came into each others path and the impact occurred. [ 94 ] Constable Vink testified the definition of two car lengths can vary significantly and could be anywhere from 40 to 70 feet as a car length is not a defined measurement. However, if a car was traveling 60 km/h, it would be difficult to stop if the two car lengths was 60 feet but there would be a number of factors at play.

He also confirmed that if a vehicle was trying to negotiate a left turn at 60 km/h, he would have expected to see a curved tire mark, which was not present in this case. B. Defence Witnesses 1. Weinieke Hendrik Jewel Thijs

[ 95 ] The Accused is currently employed as a journeyman mechanic. In September 2019, he was also working as a general contractor. [ 96 ] The Accused has a grade 6 education. He stopped going to school after a serious fall when he was young which made it difficult to learn. He is dyslexic. He can read but at a slow pace. [ 97 ] The Accused has a criminal record that includes two impaired driving convictions in 1994 and 2010. [ 98 ] On September 23, 2019, he was working with his son on staining the exterior of two buildings behind the stampede grounds. They finished work around 6:30 p.m.

The Accused drove his son home. He was driving a 2005 burgundy Honda Pilot. On the way home, he stopped at the bank. His son asked to stop to buy beer. They stopped at a liquor store near Richmond Road and Sarcee Trail. His son bought beer and he bought a boot mickey of Absolut vodka, which is 600 ml. They then went to his son’s house and his son invited him in. The Accused testified that he drank three Budweiser beers at his son’s house. The Accused then left to drive home. He intended to stop at Kentucky Fried Chicken on his way home.

He lives on Applewood Drive Southeast. [ 99 ] The Accused travelled on Richmond Road and turned left onto Sarcee Trail to go to Glenmore Trail. There was a lot of construction, and he was stopped in traffic for about one-half hour. During that time, he drank the entire boot mickey of vodka. [ 100 ] When traffic started, he proceeded from Sarcee to Glenmore Trail. He then travelled North on Deerfoot Trail to Peigan Trail. He was travelling eastbound on Peigan Trail. [ 101 ] He came up to 36th Street. He stopped at a red light.

A few seconds later, he had a green arrow and a solid green light which were on at the same time. He proceeded slowly to turn left from the left lane. As soon as he turned, there was a massive impact. His airbags blew, his vehicle filled with powder and his tools flew forward. [ 102 ] The Accused testified that he saw no traffic coming. [ 103 ] He believes he was travelling initially about 5-10 km/h and then may have accelerated to 15 km/h. [ 104 ] He testified that he did not know what happened after that and did not know what hit him. [ 105 ] He was stunned and in shock.

When he calmed himself, he was a distance from the impact. He came out of his vehicle and started to walk. [ 106 ] A guy came and asked him what he was doing, and the Accused said I live seven blocks or seven houses away. The man told him to sit down, so he sat down. The man told him he was in an accident and the Accused replied, “okay, I don’t know. I’m in shock. I do not know what was happening.” The Accused testified that he did not speak to Mr. Kopfensteiner after he sat down. [ 107 ] He testified that “I cannot recall driving.

It’s like a blackout.” He realized he travelled a distance afterwards. [ 108 ] When the police arrived, the Accused was sitting on the sidewalk. He admitted to driving the vehicle. He was asked to provide a breath sample and he complied. He was read his Charter rights and indicated he did not wish to speak to counsel. He was still in shock and disoriented. He did not know how he ended up on that street. [ 109 ] The Accused testified he learned there had been a fatality when he was at the police station. The policer officer asked what happened and said he was in an accident.

The Accused said there has to be a car or something big hit me, its so bad. The Accused was told it was a motorcycle and he lost it. Once he learned it was a motorcycle, he realized that the person must have been dead. He is a professional motorcycle racer and was the Western Canadian Champion in 1992. He knows the impact a motorcycle would make at speeds. [ 110 ] The Accused denied that he turned left into oncoming traffic across a median and hitting a sign.

He said the force of the impact and the projection of his vehicle and the fact his wheel was turned left, automatically the force will encourage the vehicle to go more to the left. [ 111 ] He acknowledged telling the police he saw a green light but made no reference to a flashing green arrow. In his shocked condition and hearing it was a motorcycle run into him, he just said he saw a green light. [ 112 ] He did not feel anything in the shock. [ 113 ] The Accused does not dispute the time of the collision or that he was drinking and driving .

He does not dispute the readings submitted by the Constable. [ 114 ] In cross-examination, he clarified that his son had purchased the boot mickey for him at his request while he remained in the car. He confirmed the mickey was 600ml. [ 115 ] He only drank three beers at his son’s house because he was tired and wanted to go home. When he left, he was not feeling the effects of the alcohol. [ 116 ] The Accused acknowledged he drank the mickey while he was operating his motor vehicle while traffic was at a standstill.

He claimed his judgment was not impaired from drinking the three beers. [ 117 ] He confirmed when the collision happened, he felt a huge bang. The airbags deployed and hit him with force. He was aware he was hit by something. The Accused is also aware that a huge impact will cause injuries. He does not dispute he continued on in his vehicle, but he testified that he does not recall anything after the impact because he was in shock.

[ 118 ] He acknowledged that as a mechanic he is aware that an impact will have a negative effect, but he did not know this at the time. [ 119 ] He testified that he did not see the truck following him as he was travelling down 36th Street. [ 120 ] He stopped when he realized something was going on, not because the vehicle ceased working. When he stopped, he left the vehicle and started walking. He denies he was running. He recalls Mr. Kopfensteiner asking him where he was going, and he said I am going home. Mr. Kopfensteiner then told him to sit down. [ 121 ] He never lost consciousness. 2.

Patrick Ryan [ 122 ] Mr. Ryan was qualified as an expert in the areas of accident reconstruction and the

interpretation of traffic signal operation. [ 123 ] Mr. Ryan received and interpreted the City of Calgary traffic signal operation diagram for the intersection of Peigan Trail and 36th Street at 20:47 on September 23, 2019. He also reviewed the CPS reconstruction report and the transcript of the preliminary inquiry. [ 124 ] He testified that the default condition of the lights at the intersection is that north and southbound traffic on 36th Street has a red signal and eastbound and westbound traffic on Peigan Trail has a solid green signal.

After a vehicle arrives northbound on 36th Street at Peigan Trail, it actuates the minimum green time and clearance intervals on Peigan Trail. The green signal on Peigan Trail does not switch to amber and then red unless a vehicle or pedestrian on 36th Street actuates the traffic signal. [ 125 ] The traffic on 36th Street will then see a green signal for a minimum of 10 seconds if one vehicle is detected, to a maximum of 25 seconds if multiple vehicles are detected.

This is followed by a 3.5 second amber period and a 2.5 second clearance interval in which all lights at the intersection display a red signal. [ 126 ] The controlling logic of the traffic signal at Peigan Trail applies likewise. If an eastbound vehicle is in the left-hand turn with the intention to turn northbound on 36th Street, then the minimum green interval of 10 seconds will be triggered and accompanied by a left-hand turn signal for eastbound traffic. Westbound traffic will receive a red signal for the duration of the green signal.

This includes if the cycle was initiated by traffic at 36th Street completing its green interval. [ 127 ] Mr. Ryan testified, in response to a hypothetical posed by Defence counsel that if Mr. Kopfensteiner is presumed to have stopped in response to a fresh red, and the Honda Pilot was present at the intersection at the start of the traffic cycle, then the next signal that Peigan Trail traffic would have received would be a flashing green and solid green for eastbound traffic and a red for westbound traffic. This hypothetical presumes that a different vehicle or pedestrian started the traffic cycle, not Mr.

Kopfensteiner. [ 128 ] Mr. Ryan also testified that a vehicle traveling at 60 km/h would take 18.4 metres to stop, absent any allowance for perception or reaction time and presuming an aggressive brake application. Mr. Ryan estimated that a vehicle following at two car lengths and travelling at 60 km/h would have been involved in the collision as well. [ 129 ] Mr. Ryan hypothesized that a vehicle would have a hard time navigating the left-hand turn from eastbound Peigan Trail to northbound 36th Street at speeds at or exceeding 60 km/h. [ 130 ] Mr.

Ryan acknowledged on cross-examination that he prepared his opinion while informed of the Accused’s version of the events. Mr. Ryan confirmed that his opinion excluded the evidence of Ms. White and Mr. Chung. He also confirmed that his report contained errors, such as recording Ms. White as riding on a motorcycle, not a van. [ 131 ] Mr. Ryan acknowledged that his analysis relied on an assumption that the Accused stopped, and that he stopped because he was facing a red light or westbound traffic. Mr. Ryan, on cross-examination, said that vehicles could stop for other reasons.

He did not consider the impairment of the driver to be a possible explanation for the Accused’s stopping as he “has no expertise in toxicology.” [ 132 ] Mr. Ryan also acknowledged that his analysis assumes there were no other relevant nearby westbound vehicles, because if there had been, it would point to the light being at a different phase than an eastbound flashing green/solid green combination. The Accused could then have been stopped in response to westbound traffic. In result, Mr.

Ryan explains that his conclusion is the product of his weighing what he believed was the most likely explanation of events, which is that Mr. Kopfensteiner’s evidence supports the Accused’s version of events. [ 133 ] Mr. Ryan agreed on cross-examination that a vehicle in the position of the Accused could trigger the left flashing green and the light would expire according to its maximum 10 seconds, in which case a 3.5 second amber would be displayed, followed by a solid green which permits an unprotected left turn—no all red clearance interval would take place.

At the time of a solid green being displayed to eastbound traffic, a solid green light would be likewise displayed to westbound traffic. [ 134 ] Mr. Ryan disagreed with Constable Vink’s answer on examination that a northbound vehicle could trigger a flashing green turn signal for eastbound Peigan Trail traffic. [ 135 ] Mr. Ryan agreed that his analysis was predicated on Mr.

Kopfensteiner arriving at a “fresh red.” He said: If northbound traffic is approaching and that light is red and has always been red for an arbitrary period of time because the lights are in their rest phase and their rest behaviour, then eastbound traffic would see a solid green light in both the through lane and the left turn lane. And we're left with no clear explanation as to why an eastbound driver intending to turn left would have come to a stop. [ 136 ] Mr.

Ryan said that a green arrow only comes after a traffic signal cycle triggered by intervening 36th Street traffic. [ 137 ] If the light was red on 36th Street for anytime longer than 13.5 seconds, Mr. Ryan said that Peigan Trail would be facing solid

green lights in both directions. That time includes the longest possible duration of a left arrow and subsequent amber phase on eastboundPeigan Trail. [138] If the light was red for 10-13.5 seconds, the eastbound Peigan Trail turn signal was triggered, it would be in an amber phase, orat the end of a green phase, if it had been extended. [139] If the light was red for 5 seconds and the eastbound Peigan Trail turn signal was triggered, then the signal would be midwaythrough a green arrow. IV. Analysis A. Reasonable Doubt [140] The Crown must prove the guilt of the Accused beyond a reasonable doubt.

Reasonable doubt is inextricably intertwined withthe presumption of innocence. Reasonable doubt means a doubt based on reason and common sense that is logically connected to theevidence or the absence of evidence. Reasonable doubt must not be imaginary or frivolous or based on sympathy or prejudice: R vLifchus, [1997] 3 SCR 320, at paras 30, 31 and 36. B. W(

D) Analysis [141] The Accused testified in this case. R v W(D), [1991] 1 SCR 742, at paras 10-11, as modified in R v Ryon, 2019ABCA 36 at para 51 and R v Achuil, 2019 ABCA 299 at para 18, requires that I consider that: i. The burden of proof is on the Crown to establish the accused's guilt beyond any reasonable doubt, and that burden remains on theCrown so that the accused person is never required to prove his innocence or disprove any of the evidence led by the Crown. ii.

In that context, if the accused’s evidence denying complicity or guilt (or any other exculpatory evidence to that effect) is believed, oreven if not believed still leaves the trier of fact with a reasonable doubt that it may be true, then the trier of fact is required to acquit. iii. While the trier of fact should attempt to resolve conflicting evidence bearing on the guilt or innocence of the accused, a trial is not acredibility contest requiring them to decide that one of the conflicting versions is true.

If, after careful consideration of all the evidence,the trier of fact is unable to decide whom to believe, they must acquit. iv. Even if the trier of fact completely rejects the accused's evidence, they may not simply assume the Crown's version of events must betrue. Rather, they must carefully assess the evidence they do believe and decide whether that evidence persuades them beyond areasonable doubt that the accused is guilty. Mere rejection of the accused's evidence (or where applicable, other exculpatory evidence)cannot be taken as proof of the accused's guilt.

Application of WD [142] The first step of the WD analysis requires me to determine whether I believe the evidence of the Accused denying guilt (orother exculpatory evidence to that effect): Ryon at para 51. If I believe the accused, I must acquit. [143] In assessing the Accused’s evidence, I am mindful that the Accused does not have the burden to disprove evidence. I have alsoconsidered that there are problems with making credibility assessments based on demeanour alone given many factors can impact awitness’s testimony.

In this case, I have considered the fact that the Accused has limited education, is dyslexic and is from BritishGuiana. [144] For the reasons that follow, I reject much of the evidence of the Accused. [145] In considering the Accused’s statement to the police, I am cognizant that the Accused’s silence is not proof of his guilt.However, in assessing his credibility, I have considered where his evidence at trial differed from his statement to the police. [146] There were several discrepancies in the evidence of the Accused which affect his credibility.

As noted below, his evidence onkey points was inconsistent or convenient including: • The Accused testified that he knew something hit him, that his airbags deployed, his tools fell forward, and he heard a loud bam,but he did not know what hit him. On cross-examination, he acknowledged that he assumed it was a vehicle because he was driving. TheAccused is also a mechanic and acknowledged in cross-examination that “the vehicle was funny to me, so I stopped and came out of thevehicle.” • The Accused denied knowing that a motorcycle hit him until he was at the police station.

However, on the body-worn camera,while he is riding in the police car, he can be heard saying motorcyclist, bam, wow, crash into me, come so fast. • The Accused testified that he stopped at a red light and then turned left on a green flashing light not a full green light. However, hewas specifically asked by Constable Smith at the police station if he had a flashing green light, and he answered as follows: Cst Smith: So, you don’t see the—vehicle coming towards you at all when you were making a left turn? Weinke Thijs: Yeah, car, it’s a green light Cst Smith: Was it—it’s a flashing green arrow?

Weinke Thijs: No, no. Full green. Last I knew. I do not know. No, I just heard was officer speaking. A motorcycle hit me. • In cross-examination, the Accused stated, “I did see the green arrow but in my shocked condition I just said that I saw green”. • The Accused was again asked by Constable Rana at the police station whether he had a green turn arrow. In the body-worn camera footage that recorded the interview, the Accused can clearly be seen shaking his head back and forth horizontally. It is evident from the video he is shaking his head to signal the answer “No”.

However, when confronted with this evidence in cross-examination he stated as follows: Q Constable Rana asked you what the light status was that you were facing before you made your left turn? A Yes, he did. Q And he asked you if it was an arrow? A Yes, he did. Q And you shook your head; right? A I think -- yes, I did. Q And when I say shake your head, I'm suggesting that you shook your head back and forth horizontally? A Yes, it because, like, I'm not understanding too.

Q And just for the record, you just shook your head back and forth horizontally A No, just I -- I also being confused after, from the shock, with the shock. It's like I cannot answer anymore. Q You would agree that shaking your head horizontally means no? A You mean this way? Q Yes. A My head, it -- I -- it's like I -- I didn't -- I was getting confused. Q My question is, would you agree with me that shaking your head horizontally back and forth means no. A It could means no. Q I'm suggesting that it always means no. A Okay. Q After you shook your head to Constable Rana's question, you said green light?

A Yeah, that's in my confusion. I'm going that way. That's what I'm saying. Q And you said again it was a green light? A Yeah. Q Today, you're saying that you were facing a green arrow? A Yes. Now, my head is settled down. But after my red light it was over, it's – the orange in the middle there. It's a green flashing arrow and a green solid big huge. Automatically I make a left.

I will look my arrow first. • Although the Accused testified that he was in a state of shock when he answered Constables Smith and Rana about the status of the light, he was able to accurately recall many other specific details including his path of travel, his activities prior to the collision, how much alcohol he consumed and where, the specific types of alcohol he consumed, and the price of the boot mickey.

This precise recall stands in sharp contrast to his evidence that he was in shock when asked about the status of the lights. • The Accused testified that he was in shock and blacked out, and he stopped the vehicle when he had calmed down. I find this unlikely and unbelievable. Although the Accused may have initially been in shock from the collision, he continued to operate the damaged vehicle. In doing so he drove over a centre median, ran over a sign, moved into the northbound lane of 36th Street and turned right onto Erin Woods Boulevard.

His car travelled 491 metres from the point of impact to the area of final rest. Given his vehicle was severely damaged and it was screeching along, I find it unlikely that the car would operate on its own without intentional action on the part of the Accused. • The Accused testified that he did not see the truck following him on 36th Street. However, the Accused can be heard on the body- worn footage telling police that he saw a vehicle following him and that he knew they would be a witness. • The Accused testified that he told Mr.

Kopfensteiner that he was going home after he exited the vehicle and that he lived 9 houses away. In cross-examination, he said he lived 7 block or 7 houses away and acknowledged that he actually lived in the neighbourhood of Applewood.

[ 147 ] I have separately considered that the reliability of the Accused’s evidence is lessened by his consumption of alcohol on September 23, 2019. [ 148 ] Having rejected the Accused’s evidence, I must consider whether his evidence in the context of the whole of the evidence leaves me with a reasonable doubt. I will address this under each of the counts below. [ 149 ] I have also considered the evidence of the other witnesses. In so doing, I am cognizant that a trial is not a credibility contest. [ 150 ] Ms. Smith witnessed her partner be killed in the horrific collision.

This tragic event happened very quickly, and no doubt has traumatized Ms. Smith for life. While I have no concerns with the credibility of Ms. Smith as a witness, I have some concerns with the reliability of some of her evidence. In particular, her evidence that the Honda Pilot was travelling at excessive speeds and did not slow down or stop at the intersection before making the left-hand turn. I accept the evidence of the other witnesses that the Accused was stopped in the left-hand turning lane before making a left-hand turn.

I also rely on the expert evidence of Constable Vink that he would have expected to see tire marks from a turn based on the description provided by Ms. White, but none were present. [ 151 ] I find that Mr. Kopfensteiner’s evidence is reliable. In doing so, I acknowledge Mr. Kopfensteiner was mistaken as to whether there was a vehicle behind him. However, I do not take much from this inconsistency given Mr. Kopfensteiner was focused on the events related to the collision happening in front of him. I find Mr.

Kopfensteiner was the witness with the best vantage point for witnessing the collision, including the location of the Honda Pilot both before and after the collision. He is also an independent witness. C. Count 1 [ 152 ] Counts 1 and 2 both deal with causing the death of another person while operating a conveyance. Subsection 320.14(1) (

a) deals with an impaired accused and subsection 320.14(1) (

b) deals with an accused with a blood alcohol level over .08. [ 153 ] Defence counsel acknowledges that the Accused was operating a conveyance when his blood alcohol level exceeded 80 mg of alcohol in 100mL of blood, contrary to

section 320.14(1) (

b) of the Criminal Code and is therefore guilty under

section 320.14(1) (b). I agree. [ 154 ] The agreed statement of facts and evidence of the Accused established that the Accused was operating a conveyance at approximately 20:47 hours. He ceased operating the conveyance on Erin Woods Boulevard a few minutes later. At 21:27 hours and 22:08 hours, the Accused provided two samples of breath into an approved instrument operated by a qualified technician, Constable Rana.

Both samples of breath measured 170 milligrams of alcohol in 100 millilitres of blood. [ 155 ] Before each sample was taken, Constable Rana conducted a system blank test, the result of which was not more than ten milligrams of alcohol in 100 millimetres of blood, and a system calibration check, the result of which was within ten percent of the target value of an alcohol standard that was certified by an analyst. Given the results are the same, the evidentiary presumption under

section 320.31(1) of the Criminal Code applies such that the results of the analysis are conclusive proof of the Accused’s blood alcohol concentration at the time of the analysis. [ 156 ] The Certificate of a Qualified Technician and the Certificate of an Analyst were admitted for the truth of their contents. [ 157 ] I will deal with causation below. D.

Count 2 [ 158 ] Defence argues the Crown has not established impairment beyond a reasonable doubt. [ 159 ] The Crown argued that the evidence of Constable Smith, combined with the evidence of the accident which illustrates poor judgment, are indicia of impairment. [ 160 ] Impairment is a question of fact that can be proven by the Crown in different ways, including by driving patterns. It can also be established by observation.

As the Court in R v Andrews , 1996 ABCA 23 noted at para 25 : ...Where the evidence indicates that an accused's ability to walk, talk, and perform basic tests of manual dexterity was impaired by alcohol, the logical inference may be drawn that the accused's ability to drive was also impaired. In most cases, if the conduct of the accused was a slight departure from normal conduct, it would be unsafe to conclude, beyond a reasonable doubt, that his or her ability to drive was impaired by alcohol.

Put another way, as was done in Stellato , the conduct observed must satisfy the trier of fact beyond a reasonable doubt that the ability to drive was impaired to some degree by alcohol. [ 161 ] I accept Mr. Kopfensteiner ’s evidence that the Accused “had some alcohol in him guaranteed”, he was not a “hundred percent” and he “wasn’t straight”. [ 162 ] Although Mr.

Kopfensteiner could not recall if the Accused smelled like alcohol, Constable Smith testified that once the Accused was in an enclosed space in the backseat of her vehicle, she could smell the beverage alcohol on his breath. [ 163 ] Constable Smith further testified that when she initially approached the Accused, his eyes looked very glassy and wet, and he looked a bit unsteady on his feet. She also noted that the Accused was slow to respond to her questions when she initially approached him, but at that time he seemed to be in shock.

However, he was also slow to respond to questions in her vehicle. [ 164 ] On the video from the body-worn camera, the Accused’s eyes appear glassy. This can be seen most clearly when the Accused is at the police station. Further, in the police vehicle on the way to the police station, the Accused is often speaking in a rambling and repetitive fashion.

[ 165 ] I have also considered the Accused’s conduct and pattern of erratic driving after the collision, as more particularly described under count 3 below. I have further considered that the Accused’s path of travel was shallower than would have been expected when he navigated the left turn, even taking into account any possible redirection of his vehicle caused by the collision. [ 166 ] Additionally, the Accused admits his alcohol consumption including that he drank three beers at his son’s house immediately before driving home.

He then drank a “boot mickey” of vodka in his car while he was stuck in a traffic jam before the collision. [ 167 ] In cross-examination, the Accused also admitted his ability to drive was impaired by alcohol: Q. At the time of the collision, the alcohol that you had consumed had already started to affect you: right? A I do not know about that. I do not know. Q You told your counsel that you are admitting to drinking and driving; right? A Not at all times, but yes. Q I'm talking about this particular night. A Yes. Q So you're admitting that your ability to drive was impaired by alcohol? A Yes.

Q You had discussions with Constable Smith? A Yes. Q And you remember interacting with her that night? A Yes. Q. So you’re admitting that your ability to drive was impaired by alcohol? A. Yes. [ 168 ] I accept that the normal speech patterns of the Accused are a factor to consider in assessing impairment. In this case I do not rely on the speech patterns one way or another.

However, I reject the Defence’s argument that the indicia of impairment can be explained by his level of education, background or his dyslexia given the totality of the evidence discussed above. [ 169 ] The Crown has therefore established beyond a reasonable doubt that the Accused operated his vehicle while his ability to operate was impaired by alcohol. E. Causation [ 170 ] I must now consider whether the Crown has proven beyond a reasonable doubt that the Accused caused the death of Mr. Ross contrary to

Section 320.14(3) of the Criminal Code . [ 171 ] Neither party was aware of any reported decisions considering these new provisions in the Criminal Code at the time of trial . I note that one decision has recently considered the new provisions: R v Andre , 2022 YKTC 9 . [ 172 ] In their submissions, the Crown reviewed the prior impaired driving causing death provisions and noted they were previously required to show that an accused caused the death as a result of impaired driving. This required expert evidence to connect how an accused’s driving contributed to the collision.

However, for the over .08 causing death, the Crown only had to prove that an accused caused the collision while committing the underlying offence. [ 173 ] In R v Rhodendizer , 2018 ABCA 224 at para 4 , the Court of Appeal described the causation requirements for the previous .08 causing death provisions this way: With respect to causation, the base offence here is operating a vehicle with blood alcohol over the legal limit, contrary to s. 253(1) (

b) and 255(1) of the Criminal Code . That constitutes an offence whether or not the accused is “impaired”. Section 255(3.1) makes it a more serious offence to “cause an accident resulting in the death of another person” while committing an offence under s. 253(1) (b). The Crown need only prove that the accused caused the accident, not that the blood alcohol level had any particular effect on the accident: R. v Koma , 2015 SKCA 92 at paras. 27-29 , 32, 329 CCC (3d) 29; R. v Carver , 2013 ABPC 140 at para. 60 , 558 AR 50. [ 174 ] The Crown argues that the current

section s 320.14(3) of the Criminal Code does not distinguish between the underlying offences of ss 320.14(1)(

a) and (b). Rather,

section 320.14(3) ties the causation of death back to the operation of the conveyance and not back to the impaired or the blood alcohol concentration offence. [ 175 ] I agree. The causation analysis is now the same under

section 320.14(3) regardless of whether the underlying offence is pursuant to sections 320.14(1)(

a) or (b) . The Crown must therefore prove that an accused caused the death while driving and at the same time committed the underlying offence of either 320.14(1)(

a) or (b).

[176] The Crown relies on the traditional causation test articulated in R v Nette, 2001 SCC 78 and R v Smithers, (SCC), [1978] 1 SCR 506 which held that the Crown must establish that the accused’s act “was at least a contributing cause of deathoutside of the de minimus range.” In Nette, the court clarified that this term means a “significant contributing cause.” The same phrasewas used more recently in R v Maybin, 2012 SCC 24 at para 28. [177] I accept the traditional causation test in Smithers.

However, in doing so, I am cognizant of: the distinction between a motorist driving in an impaired condition who is involved in an accident, and the motorist driving in animpaired condition whose impaired driving ability (as evidence by driving conduct, or failure to react or to make a certain judgment)comprises a contributing cause outside of the de minimis range to the victim's bodily harm or death: Andre at para 42. [178] Given there is no dispute in this case that the Accused was driving and given I have determined the Accused committed theunderlying offences under sections 320.14(1)(

a) and (b), I will now consider whether the Crown had proved beyond a reasonable doubtthat the Accused caused the death of Mr. Ross. [179] With the above principles in mind, I turn to the evidence. [180] The Crown argues that the Accused was facing a green light as he was travelling Eastbound to complete his left turn. At thesame time, Mr. Ross was facing a green light on westbound Peigan Trail as he approached the intersection. The Crown argued thatcausation is established because the Accused had the duty to yield to oncoming traffic and he failed to do so.

When the Accusedcompleted his turn, he encroached the lawful path of the motorcycle and caused the collision. [181] The Defence argues the Accused had a left turn arrow and therefore had the right of way. It was Mr. Ross who entered theintersection on a red light. [182] Aside from the issue of whether the Accused attempted his left turn on a solid green or a flashing green arrow and that theAccused’s path of travel in making a left turn deviated from what was expected, there is a little evidence that the Accused’s driving up tothe point of the collision was otherwise a contributing cause of the collision.

I have considered the evidence of the Constable Vink thatneither speed nor mechanical or environmental conditions were factors in the collision. I accept his evidence. [183] I also accept that the cause of death of Mr. Ross was the collision. Indeed, this is admitted in the agreed facts. [184] Causation in this case therefore comes down to whether the evidence establishes that the Accused attempted his turn on a greenlight, in which case he failed to yield to Mr. Ross, or a flashing green arrow, in which case he had the right of way and Mr.

Ross enteredthe intersection on a red light. [185] After considering all the evidence, I find that the Crown has established beyond a reasonable doubt that the Accused attemptedhis left turn into the path of Mr. Ross and failed to yield to Mr. Ross. [186] I have concluded this for several reasons. [187] I accept the evidence of Mr. Ryan regarding the light sequencing at the intersection.

Most notably, that the light sequence at theintersection provided for the northbound and southbound traffic on 36th Street to face a red light until triggered by a vehicle arriving atthe intersection on 36th Street or a pedestrian seeking to cross. Further, while the northbound and southbound traffic on 36th Street faceda red, then the eastbound and westbound traffic of Peigan Trail would have a solid green.

Also, if the traffic lights for northbound andsouthbound 36th Street just freshly turned red, then if there were a triggering vehicle in the left turning lane of east bound Peigan Trail,there would be a period that the left turn lane of eastbound Peigan Trail would have a flashing green arrow for a period of time between7 and 10 seconds, followed by an amber, and then a solid green light. During the period that the flashing arrow was engaged in eithergreen or amber mode, the westbound traffic of Peigan Trail would be facing a red light. However, I do not otherwise rely on Mr.

Ryan’sopinion as to the Accused’s light status given it was based on hypotheticals relating to what may or may not have been the state of thetraffic lights at the time of the collision. [188] I note that Mr. Ryan, acknowledged in cross-examination, that if I accept the evidence of Ms. White that she had a green light,then the Accused would have had a solid green light. He also acknowledged that the fact the Accused was stopped in the turn lane, couldbe in response to westbound traffic. He did not consider the impairment of the driver to be a possible explanation for the Accused’sstopping. [189] Ms.

White testified that that Mr. Ross entered the intersection on a green light. If this evidence is accepted, the Accused wouldhave been turning left on a solid green and would not have had the right of way. While Ms. White’s evidence on other points includingthe speed of the Accused, whether the Accused stopped before executing the left turn and how far behind Mr. Ross she was travelling,are contradicted by other witnesses or physical evidence, I accept her evidence as to the status of the light facing her and Mr. Ross. [190] Ms.

White undoubtedly suffered tremendous shock and distress witnessing her spouse be struck by another vehicle and die. Itwould stand to reason that Ms. White’s level of anxiety and distress during these events would start at the point that she first realized thatthe Accused’s vehicle was going to strike Mr. Ross’ motorcycle and not before when she would have been paying attention to the statusof the traffic light at the intersection she was approaching. I accept her evidence that the light was green when Mr. Ross entered theintersection.

In relying on this evidence, I have only considered this as one part of the overall evidence that otherwise establishescausation beyond a reasonable doubt. [191] I have further relied on the Accused’s statement given to the police following the collision that he was facing a green light.First, his confirmation to Constable Smith that it was green not a flashing green arrow. Second, when specifically asked whether therewas a flashing arrow by Constable Rana, he shook his head from side to side which I accept as his answering the question in thenegative.

At trial, the Accused changed his evidence and testified that he arrived at a red light and then attempted his left turn on aflashing green arrow and not on a solid green light. As noted above, I do not accept the Accused’s evidence given at trial on the light

status. [192] I accept the evidence of Mr. Kopfensteiner that he was stopped at a red light in the left turning lane of 36th Street northbound atthe time of the collision and that he had been stopped at the red light for as long as 30 seconds or as little as 5 seconds prior to witnessingthe collision. I also accept the evidence that Mr. Kopfensteiner either did not see or does not recall seeing an amber light appear beforethe red light he faced.

This evidence contradicts the theory that he arrived at a fresh red light that would then result in a light sequencewhich would have given the Accused a flashing green arrow. [193] I accept the evidence of Mr. Chung who also was stopped at the intersection behind Mr. Kopfensteiner for about 5 to 7 secondsbefore hearing the collision. Mr. Chung’s evidence also did not suggest that he arrived at a fresh red light. [194] While Mr. Kopfensteiner and Mr. Chung testified as to the status of the light facing them, Mr. Chung testified that he was notable to see the lights for Peigan Trail traffic and Mr.

Kopfensteiner was not asked this question. Notwithstanding this, their evidence asto arriving at a red light and the duration at which they were there coupled with the light sequencing evidence is consistent with theAccused attempting his left turn on a solid green and not on a flashing arrow. [195] I have also considered that the Accused had consumed alcohol before the collision, and based on his driving behaviour after thecollision, it is not certain if he would have stopped in accordance with the ordinary traffic signals. [196] When considering the totality of the evidence, including that of Mr.

Kopfensteiner and Mr. Chung as to the duration of the redlight they were facing, the statement of the Accused to the police and Ms. White’s evidence, I am left without any reasonable doubt thatthe Accused failed to yield the right of way. [197] I therefore find that the Crown has established that the Accused’s driving was a contributing cause of the collision outside ofthe de minimis range. F. Count 3 [198] The Accused is charged with failing to remain at the scene of an accident where death resulted, contrary to

section 320.16(3) ofthe Criminal Code. The Crown must prove each of the elements of the offence beyond a reasonable doubt. [199]

Section 320.16(1) imposes a positive obligation on a driver who is involved in an accident to: (

i) stop; (ii) give their name andaddress; and (iiii) offer assistance if a person appears injured or in need of assistance: R v Seipp, 2017 BCCA 54 at paras 30-31, aff’d2018 SCC 1 at para 2. The actus reus will be met if the Accused fails to do any one of these three things.

If they fail to do so, theAccused must prove on a balance of probabilities that there was a reasonable excuse: R v Goleski, 2014 BCCA 80, aff’d 2015 SCC 6, atpara 74. [200] Since the 2018 amendments, the Crown is no longer required to establish an intent to escape civil or criminal liability: R vHarnett, 2022 ONCJ 65 at para 151. [201] The mens rea of the offence requires knowledge or recklessness that an accused was involved in an accident and knowledge orrecklessness as to whether death or bodily harm ensued: R v Dionne, 2022 BCSC 959. [202] In R v Morrison, 2019 SCC 15 the Court noted at para 98: Wilful blindness exists where an accused’s “suspicion is aroused to the point where he or she sees the need for further inquiries, butdeliberately chooses not to make those inquiries…Wilful blindness has been characterized as “deliberate ignorance” because it connotes“an actual process of suppressing a suspicion”. [citations and references omitted] [203] Recklessness is a less stringent standard than wilful blindness: Dionne at para 35.

As the Supreme Court opined in R vSansregret, (SCC), [1985] 1 SCR 570 at 582: Wilful blindness is distinct from recklessness because, while recklessness involves knowledge of a danger or risk and persistence in acourse of conduct which creates a risk that the prohibited result will occur, wilful blindness arises where a person who has become awareof the need for some inquiry declines to make the inquiry because he does not wish to know the truth. He would prefer to remainignorant.

The culpability in recklessness is justified by the consciousness of the risk and by proceeding in the face of it, while in wilfulblindness it is justified by the accused’s fault in deliberately failing to inquire when he knows there is a reason for inquiry. [204] In this case, the evidence establishes that the Accused failed to perform the three duties. After the collision, the Accused did notstop at the collision site, give his name and address, or offer assistance to Mr. Ross.

Rather, he continued to operate his motor vehicleuntil it came to a stop on Erin Woods Boulevard, which was 491 metres from the point of impact to the final resting spot. [205] I note that Mr. Ward testified that the Honda Pilot stopped before “going again.” However, given that the vehicle continued 491metres until it came to a stop and the Accused then attempted to run away, I do not find that this meets the requirements of “stopping”after an accident. The actus reus is established. G.

Knowledge or Recklessness of Involvement in Accident and Death or BodilyHarm [206] I must determine whether the Crown has met its onus to establish that the Accused knew or was reckless as to whether he wasinvolved in an accident and the accident resulted in the death of Mr. Ross, or in bodily harm to Mr. Ross, whose death ensued.

[ 207 ] Knowledge can be proven by either actual knowledge or imputed knowledge based on wilful blindness: Dionne at para 29 . Recklessness occurs when an accused is aware of a risk but proceeds despite that risk: Dionne at para 32 . [ 208 ] I find that the Crown has established beyond a reasonable doubt that the Accused knew he had been involved in an accident. [ 209 ] Specifically, as noted above, the Accused testified that he was aware he had been involved in the collision. He heard a large “bam” and his airbags deployed. He was also aware his car had sustained damage.

He further acknowledged in cross-examination that he was aware it was a vehicle he hit. [ 210 ] I have also considered the evidence of Mr. Kopfensteiner that the Accused kept telling him that “the bike hit him”, although later at the police station he stated that a car hit him.

Clearly, he knew that he had collided either with a car or a motorcycle. [ 211 ] Based on the totality of the evidence, I am satisfied beyond a reasonable doubt that the Accused knew or at a minimum was reckless as to whether his vehicle was involved in an accident. [ 212 ] The next question is whether the accused had knowledge or was reckless as to whether death or bodily harm ensued from the accident. Regardless of whether the Accused was aware it was a motorcycle or not, he testified that he knew that the accident was serious: Q. When did you learn that there had been a fatality?

A When I was at the police station, the police officer keep asking: What happened? You know, he said: You were in an accident. I said: But there's gotta be a car or something big hit me, it's so bad. He said: No, it's a motorcyclist. And I losed (sic) it. [ 213 ] Although the Accused later denied knowing it was a motorcycle involved in his collision, the Accused stated “when I hear motorcyclist—I’m a motorcyclist; I’m a road racer; and I know if a motorcycle hit me that hard, that person have to be dead.” As noted earlier, he stated to Mr.

Kopfensteiner that he had had hit a motorbike. [ 214 ] In addition to the Accused’s testimony, other evidence indicates that he was reckless as to whether or not bodily harm or death ensued. This evidence included the amount of damage on the vehicle and the fact that onlookers testified that he had a hard time controlling the vehicle due to the damage it sustained in the accident. And yet, he did not immediately stop and check to see if anyone was hurt. [ 215 ] I find that the evidence before establishes beyond a reasonable doubt that he was reckless as to whether or not bodily harm or death ensued.

Although not necessary to determine, I also find the Crown has satisfied me beyond a reasonable doubt that the Accused was wilfully blind as to whether the accident resulted in the death or bodily harm where death ensued. H. No Reasonable Excuse [ 216 ] The next step is to review whether the Accused had a reasonable excuse for failing to give his name and address or offer assistance to Mr. Ross.

The Accused submits that he was in a state of shock and was unaware of what had happened and was also disoriented from the discharge of powder from the airbags. [ 217 ] From the evidence before me at trial, I find that after the impact, the Honda Pilot continued to travel from the southbound lane, crossed a median, hit a sign and continued to travel down the street. Ultimately, the Honda Pilot stopped 491 metres from the point of impact. The Accused then exited the Honda Pilot and began to run and only stopped after Mr. Kopfensteiner told him to stop. Mr.

Kopfensteiner acknowledged in cross-examination that the Accused was “more or less in shock”. [ 218 ] Mr. Kopfensteiner said that the Accused told him that he lived nine houses away. The Accused testified that he told Mr. Kopfensteiner that he lived seven blocks or seven houses away. However, in cross-examination, the Accused acknowledged that he lives in the community of Applewood. Constable Smith testified that she drove the Accused home and that he lives an 8-10 minutes’ drive from the scene of the collision. [ 219 ] The Accused testified that “I was in shock, stunned.

And then when I did calm myself, I was a distance away from where I felt the impact. I came out of the vehicle and started to walk.” However, he also testified that he was aware he had been involved in the collision. He heard a large “bam” and his airbags deployed. The vehicle filled with powder and his tools flew forward. He testified he knew something hit him, but he did not know what. In cross-examination, he acknowledged that he knew he was hit by a vehicle because he was driving. [ 220 ] I have noted elsewhere that I did not find the Accused to be a credible or reliable witness.

Although I accept the Accused may have initially been in shock, and may have been somewhat disoriented, including from the powder from the airbags, I do not accept that he was unaware he had left the scene of the accident or that he had travelled the 491 metres unintentionally. [ 221 ] Given the state of damage to the car, the Accused would have been required to make some effort to continue to drive the vehicle.

The Accused is a mechanic and acknowledged in cross-examination that “the vehicle was funny to me, so I stopped and came out of the vehicle.” The evidence also established his car was screeching as it continued to drive after the collision and there was significant damage to his vehicle including his tire, making it difficult to drive the vehicle.

It would have taken a purposeful effort to continue to drive this damaged vehicle. [ 222 ] The Accused’s determined effort to pilot a damaged vehicle across a median and down the street and his attempt to exit the vehicle and run away from the scene is not consistent with someone who is in shock or disoriented from the powder. I conclude that the Accused has failed to establish a reasonable excuse on a balance of probabilities. [1]

V. Verdict [223] I find the Accused guilty of count 1. [224] I find the Accused guilty of count 2. [225] I find the Accused guilty of count 3. [226] I will hear counsel’s submission on R v Kienapple, (SCC), [1975] 1 SCR 729, with respect to counts 1 and 2. Heard on the 13, 14, 15, 16 and 17th day of June 2022. Dated at the City of Calgary, Alberta this 8th day of September 2022. B.B. Johnston J.C.K.B.A. Appearances: Melissa Kostiuk for the Crown Alain Hepner, Q.C. for the Accused [1] [1] This decision was delivered orally, and I reserved the right to correct syntax and grammatical errors. The substance of thedecision has not changed.