R. v. Cook Date:, 2017 BCPC 413

Citation: R. v. Cook Date: 20171024 2017 BCPC 413 File No: 217296-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal REGINA v. TREVOR COOK REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE A.M. WOLF Counsel for the Crown: P. Beirne Counsel for the Defendant: D. Albert Place of Hearing: Surrey , B.C. Date of Hearing: June 26, 2017 Date of Judgment: October 24, 2017

THE CHARGES [ 1 ] Mr. Trevor Cook is charged with three charges. The charges all arise from a ‘road rage’ incident that occurred on March 11, 2016. Specifically, he is charged with operating a motor vehicle, in a manner that was dangerous to the public contrary to Section 249(1) (

a) of the Criminal Code . [ 2 ] He is also charged with a mischief for throwing some coffee at the victim’s car and allegedly kicking it. In their closing submissions Crown counsel submitted that I need not consider the mischief charge. There was no damage caused by any coffee that may have landed on the vehicle, and it was unclear whether the accused kicked the vehicle. If he did, there again was no damage. Lastly, he is charged with uttering a threat to cause death or bodily harm.

Upon confronting the complainant it is alleged he said something like, “Get out of the car, I’m going to kick your ass.” [ 3 ] That leaves only the dangerous driving offence that I need to consider. [ 4 ] For reasons set out below, I acquit Mr. Cook of the mischief and uttering threat charge. Therefore the only matter left is the dangerous driving charge. INTRODUCTION - The Two Drivers [ 5 ] On March 11, 2016, Mr. Robert Cowie and Mr. Trevor Cook were commuting to work. The accused was in the fast lane on the freeway. Mr. Cowie passed him on the right. [ 6 ] Even though Mr.

Cowie knew the move was illegal, he admitted that he passed the accused on the right. To use his words, “he was going slower than I wanted to go, I put the flasher on to turn into the right lane, drove past him, and after a few car lengths, pulled in front of him.” [ 7 ] Mr. Cook’s recollection was different. He said that when Mr. Cowie passed him on the right, he did not pull in after leaving a few car lengths. He says that Mr.

Cowie basically cut him off, forcing him “to drive into the shoulder lane.” He said that he had to “immediately brake and swerve away or he would have hit me.” He described his vehicle as “tools were flying around and my coffee spilled on my lap.” [ 8 ] It was at this point that both drivers started driving foolishly. THE EVIDENCE Mr. Cowie’s Testimony [ 9 ] Now that Mr. Cowie had passed the accused and pulled in front of him in the fast lane, he testified that, “the truck I just passed was right on me. Very close to me.

So close I couldn’t see his licence plate.” He described the truck as swerving back and forth behind him. “I let go of my gas,” which slowed his vehicle down from about 100 km to 80 km. He said “I could tell that I made him upset” (referring to the accused.) At this point Mr. Cowie says “I just took off going about 140 km.” He says that the accused chased after him. At some point, Mr. Cowie says he “pulled over on the shoulder of the right-hand side, put my flashers on, grabbed my phone.” He said he was about to call 9-1-1 when the accused pulled up beside him, stopping in the right-hand traffic lane.

He told the court that at this point, he could see the accused, who looked like he was trying to go from the driver’s seat, over the passenger’s seat and out his window towards him. It was around this time that he thinks the accused threw a coffee at him. Mr. Cowie decided to take off and as he was pulling away from the accused he thinks the accused kicked through his open window and made contact with his vehicle. [ 10 ] Mr. Cowie said he was passing cars, going about 110 km trying to get away from the accused. He remembered that there was a spot on the highway where police sometimes were stopped.

He was shifting from the far left lane trying to make his way to the shoulder. He testified, “that’s when I got hit by the vehicle I was trying to escape.” [ 11 ] At this point he says the accused got out of his vehicle and walked up to his car yelling, “Get out of your vehicle; I’m going to kick your ass.” He describes the accused as trying to get into his car and punching his window. At this point, Mr. Cowie called 9-1-1. [ 12 ] In cross-examination Mr. Cowie agreed that he was going at high speeds. He said it was possible that he reached speeds up to 150 km.

He also admitted to applying pressure on his brakes in an attempt to say “screw you” to the accused. He was also open to the suggestion that he gave the accused ‘the finger.’ He was also clear that he did not recall the exact words that were said to him by the accused. The Accused’s Testimony [ 13 ] The accused said he had to swerve to miss Mr. Cowie. He also told the court that at one point Mr. Cowie applied his brakes extremely hard. The accused testified that he almost lost control of his vehicle at least twice because of Mr. Cowie’s driving. From the accused’s perspective, Mr.

Cowie drove dangerously and provoked a confrontation. He expressed his view succinctly when he said “he could have killed me or others.” [ 14 ] As for their first contact on the side of the road, he says he did not throw a coffee at Mr. Cowie. He does remember throwing the remainder of his coffee and the cup it was in down on his vehicle’s floor and he admits it is possible that some of the coffee flew outside his vehicle through the open passenger’s seat onto Mr. Cowie’s vehicle. He adamantly denies that he at any time had his feet out of his vehicle trying to kick Mr. Cowie’s vehicle.

This denial is in contrast to Mr. Cowie who said that he actually saw a footprint on his vehicle from the accused.

[15] As for the threats, he admitted that he was angry and yelling and swearing, but denies uttering threats. He said he did “smackhis window with my hand” which had a serious cut on it from a work injury. He also admitted that hitting the window opened thewound and some blood got onto Mr. Cowie’s vehicle. Two Other Witnesses [16] There were many other commuters on the road that day. Mr. Mark Wilkins who testified was one of them. He saw the twovehicles chasing each other.

In his words, “if anyone else made a sudden move there would have been a big accident.” While he did notknow why, it seemed obvious to him that they “both seemed to be antagonizing each other - one car was trying to get away from theother.” He was so concerned about their driving that he called 9-1-1. [17] Ms. Ashleigh Brown was also commuting to work that day. Ms. Brown was asked what she thought she was looking at whenshe saw the two vehicles. She said, “I thought it was a case of road rage.” She said all the drivers around her were aware of this highspeed chase down the highway.

As they sped by her, another driver looked over to her and gestured from her vehicle how crazy the twowere driving. It was obvious to her that everyone on the road was trying to manoeuvre their vehicles out of the way to avoid beinginvolved with these two vehicles. Ms. Brown was so disturbed by the behaviour of the accused and Mr. Cowie that she called 9-1-1. [18] By both witnesses’ accounts, the vehicles being driven by the accused and Mr. Cowie were involved in a chase where theaccused’s vehicle was speeding, tailgating, and making sudden moves. Ms.

Brown said the accused had lots of opportunities to cease thechase or even, at one point, pass Mr. Cowie. [19] It is obvious that all the witnesses, including the accused, would admit that there was foolish driving by both drivers that day. THE LAW Dangerous Driving [20] It is important to instruct myself that this charge arises from the Criminal Code of Canada. As such, there must be somethingmore than merely ‘foolish’ driving. In order to graduate foolish driving to the higher, more morally culpable level of a crime under theCriminal Code there must be some concept of an intentional act.

In other words, the mens rea must be considered in a criminal context,not a civil one. Section 249 (1) Every one commits an offence who operates (

a) a motor vehicle in a manner that is dangerous to the public, having regard to all the circumstances, including the nature, condition anduse of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expectedto be at that place.

(2) Every one who commits an offence under subsection (1) is guilty of an indictable offence or an offence punishable by

summaryconviction. [21] The real question is whether, viewed objectively, the driving was in a manner dangerous to the public, having regard to all thecircumstances. To put it in terms of R. v. Hundal, (SCC), [1993] 1 S.C.R. 867, I must be satisfied that the conduct (ordriving complained of) amounted to a marked departure from the standard of care that a reasonable person would observe in theaccused’s situation. ANALYSIS [22] With respect to the mischief charge, I am asked not to consider convicting on this charge. Certainly, Mr.

Cook has provided anexplanation as to how the coffee might have gotten on the complainant’s car. His explanation makes sense logically, and provides afoundation to acquit on this charge. I point out as well that even by the complainant’s own account, he did not have a recollection ofseeing the coffee thrown directly at him. He was not able to ascertain whether it was coffee or a cup as well. I accept the accused’sversion of events and, as such, I have some doubt as to whether the requisite mens rea has been proven.

Specifically, I have a reasonablydoubt as to whether the accused intentionally threw coffee at the complainant. I also have some doubt whether the minimal amount ofcoffee that was found on Mr. Cowie’s car damaged or otherwise interfered with the lawful use of that vehicle. There is no evidence thatthe vehicle suffered any sort of dent or scratch from the alleged kick. As well, Mr. Cowie admitted that he did not actually see a footcome into contact with his vehicle; he simply saw a footprint on his vehicle. I acquit the accused on the mischief charge. [23] With respect to the uttering threat charge, Mr.

Cowie could not recall the exact words that were uttered. This inability torecollect the words coupled with the strength of the accused’s testimony denying that any such words were uttered leaves me with areasonable doubt as to what words were actually used. Therefore, I weigh this doubt in favour of the accused and acquit him of theuttering threat charge. [24] By all accounts the traffic was light that morning. The weather and road conditions were fair. While a bit dark, visibility wasclear. The driving took place on a major highway.

There were many other drivers on the road that day. [25] The Lower Mainland has nearly three million people living in it. Many of those people have to commute to work or school andI am one of them. The reality is that some commuters spend two or three months of their year commuting to and from work. I regularlysee foolish driving. Each day there are some drivers who recklessly weave in and out of traffic without signalling. They are guilty ofimproperly changing lanes. There are annoying drivers who go under the speed limit in the fast lane.

These drivers fail to appreciate thesigns posted that ask them to stay to the right and allow others to pass. There are inconsiderate drivers who travel in the HOV laneswhen they clearly have only one person in the vehicle. They are guilty of a ticketable offence.

[ 26 ] In total, statistics seem to indicate that there are on average approximately 180,000 motor vehicle accidents in the Lower Mainland every year. On average there are 39,000 people that die in those accidents. Speed and being distracted are two of the main factors that these accidents have in common. [ 27 ] Incidents of road rage are common. Fingers are given, horns are beeped, and words are often exchanged. This sort of behaviour is problematic. Reacting in this way never helps calm tempers. [ 28 ] The Honourable Judge Woods in R. v.

Noor , 2010 BCPC, a judgement from August 19, 2010, commented on road rage incidents. While actually referring to the sentencing process and the combination of road rage and threatening behaviour, I believe the thrust of his comments are applicable to this case. [9] Road rage incidents are, I would say, a species of criminal misconduct that call for close scrutiny by the court at times of sentencing.

Any instance of threats to cause death or bodily harm are of course taken seriously by the court, but when you combine that kind of conduct with the enhanced risks and dangers associated with vehicles travelling at speed and making manoeuvres and with the drivers conducting themselves in ways that put not only themselves at risk, but other drivers at risk as well - and at considerable risk, given the size and the weight of vehicles, when they are travelling and potentially colliding with other vehicles, innocent people who are in proximity to them - the potential for a truly calamitous outcome is very real.

CONCLUSION [ 29 ] In this case, the accused pursued another vehicle at high speed, weaved in and out of traffic, tailgated, stopped in a lane in a manner that was not safe, and perhaps accidentally, blinded and distracted by anger, hit Mr. Cowie’s vehicle with his. While the contact between the two vehicles may have been accidental, when I consider the totality of his driving I find he was driving dangerously. [ 30 ] His driving scared other motorists. His actions terrified Mr. Cowie to the point that Mr. Cowie thought he had to take evasive action to escape the accused. [ 31 ] To be clear, if Mr.

Cowie was on trial for passing on the right, or speeding, more than likely I would find him guilty and he would receive the appropriate penalty. However, he is not. Mr. Cook is on trial for the criminal offence of driving dangerously. [ 32 ] I find that the Crown has proven beyond a reasonable doubt each element of the offence. Mr. Cook’s driving amounted to a marked departure from the standard of care a reasonable person would observe in the accused’s situation. His driving was reckless and he put many commuters at risk that day, including Mr.

Cowie. [ 33 ] I find him guilty of the offence of driving dangerously contrary to Section 249(1) of the Criminal Code . The Honourable Judge A.M. Wolf Provincial Court of British Columbia