R v Bakko, 2024 ABCA 2

In the Court of Appeal of Alberta Citation: R v Bakko, 2024 A BCA 2 Date: 20240105 Docket: 2301-0058A Registry: Calgary Between: His Majesty the King Respondent - and - Yvette Renee Bakko Appellant _______________________________________________________ The Court: The Honourable Justice Peter Martin The Honourable Justice Kevin Feehan The Honourable Justice Anne Kirker _______________________________________________________ Memorandum of Judgment Appeal from the Conviction by The Honourable Justice E.E. Olsen Dated the 17th day of October, 2022 ( 2022 ABPC 217 , Docket: 200675080P1)

_______________________________________________________ Memorandum of Judgment _______________________________________________________ The Court: I. Overview [ 1 ] Yvette Bakko appeals her convictions for dangerous driving causing death, contrary to s 320.13(3) and causing death while operating a motor vehicle with a blood alcohol concentration exceeding 80 mg of alcohol in 100 ml of blood, contrary to s 320.14(1)(

b) and (3) of the Criminal Code . Following the entry of a detailed Agreed Statement of Facts, the two issues left to the trial judge were causation for both offences and the mens rea for dangerous driving causing death. After consideration of these issues, the trial judge convicted Ms Bakko on both counts. [ 2 ] The trial judge made some errors in her findings of fact, but they are not overriding errors, meaning that they do not affect the outcome. For the reasons explained below, the appeal is dismissed. II.

Facts [ 3 ] As indicated, counsel provided the trial judge with a comprehensive Agreed Statement of Facts, and the Crown called three witnesses: another driver on the highway, Ms Bakko’s partner who was a passenger in her vehicle, and the RCMP accident reconstruction expert. Ms Bakko called no evidence. [ 4 ] On January 6th, 2020, shortly before 8 pm, Ms Bakko was driving a blue 1993 Dodge Ram flatbed truck southwest on Highway 512 in Lethbridge County. Her partner and passenger admitted he was impaired and that was the reason why Ms Bakko was driving.

Her blood alcohol content was 99 mg of alcohol in 100 ml of blood. [ 5 ] Ms Bakko stopped at a stop sign at the intersection of Highway 512 and Highway 3, a four-lane divided highway running approximately east and west. She proceeded through the two westbound lanes of Highway 3 and stopped once again in the median between the westbound and eastbound lanes of Highway 3. She then turned left, eastbound onto Highway 3. Ms Bakko’s passenger testified that he looked west as Ms Bakko was stopped at or entering Highway 3 eastbound and saw no vehicles in the approaching left or passing lane.

He said he did notice vehicles travelling eastbound in the right lane west of their location. [ 6 ] The trial judge accepted the passenger’s evidence that Ms Bakko was driving in a familiar area, in a familiar vehicle, and had considerable driving experience. She accepted his evidence that Ms Bakko stopped both before the initial intersection with the westbound lane of Highway 3 and at the median between eastbound and westbound lanes.

The trial judge also accepted that while the passenger said he saw “vehicles travelling eastbound in the right ... lane, west of their location”, he “did not see the Suzuki”, the other vehicle in the collision.

Beyond this, however, the trial judge said she found the passenger’s evidence was “of little assistance”, “generally unreliable”, and accepted by her only if accepted by counsel or corroborated by other evidence. [ 7 ] When Ms Bakko turned left onto Highway 3 eastbound, she either turned onto the left shoulder of the highway and progressively moved into the left driving lane, or she turned partially onto the shoulder and partially into the left driving lane. The area of impact was approximately 50 metres east of the intersection from where she made the left turn.

The accident reconstruction expert testified that the left rear side of Ms Bakko’s truck “would have been just into the shoulder.” He could not determine what speed the vehicles were going when the collision occurred. He testified that “all [he could gather from the dynamics of the accident] was that the Dodge was going [significantly] slower at the time of impact than the Suzuki.

He also noted that Highway 3 is relatively straight in that area, giving both merging and oncoming drivers a clear view, yet he saw no evidence of braking or evasive manoeuvres having been taken by the Suzuki prior to the accident. [ 8 ] Ms Bakko’s speed at the time of the collision was estimated by her passenger to be approximately between 5 and 10 miles per hour or 8 to 16 kilometres per hour.

Despite finding the passenger’s evidence generally unreliable, and with no corroborating evidence and an expert who said the respective speeds of the vehicles could not be determined with precision, the trial judge decided that Ms Bakko entered the highway “at a dangerously low speed, accelerating until the time of collision only to about 8 to 16 kilometres per

hour.” She then extrapolated that Ms Bakko “maintained that dangerously low speed ... for a significant period of time, perhaps as short as 11 seconds but potentially for as long as 22 seconds” over the distance of 50 meters.

These precise findings do not logically flow from the trial judge’s assessment of the passenger’s reliability or the evidence as a whole and may overstate Ms Bakko’s departure from the standard of care expected of a reasonable person in the circumstances. [ 9 ] At approximately the same time that Ms Bakko made the left-hand turn onto Highway 3, the 18-year-old driver of a silver 2007 Suzuki Grand Vitara, Courtney Gruninger, was travelling eastbound on Highway 3, approaching the intersection with Highway 512.

Approximately 5 minutes prior to reaching that intersection, she passed the driver who was the independent witness at trial, while in the left or passing lane of Highway 3 eastbound. The witness indicated at the time she was in the right eastbound lane and travelling approximately 115 to 120 kilometres per hour. She estimated the driver of the Suzuki was travelling at approximately 130 kilometres per hour; as she commented to her own passengers about the speed of the Suzuki, that may be a conservative estimate.

The witness indicated that the Suzuki remained in the left lane as far as she could see it, approaching the intersection with Highway 512.

No other vehicle passed her before the scene of the collision. [ 10 ] Ms Bakko’s theory is that if her passenger’s evidence is correct that when he checked he could see only lights in the right oncoming lane, and if that was the Suzuki, then it must have drifted into the left lane, to the area of impact on the highway, possibly due to the driver’s inattention. [ 11 ] Tragically, the driver of the Suzuki was killed. [ 12 ] When first responders attended at the scene, they found a cell phone on the passenger side floor of the Suzuki playing “a video ... in a continuous loop on the screen of the phone ... appear[ing] to be playing on SnapChat or a similar social media platform.” Crown counsel accepted that the Crown was “not able to disprove that at the time of the collision [the driver of the Suzuki] was watching a video on her cell phone”.

Ms Bakko says it was reasonable to infer that the driver was watching the video and therefore was distracted at the time of the collision. In closing submissions, Ms Bakko’s counsel argued this could lead to a reasonable inference that the Suzuki drifted from the right lane into the left lane and caused the collision. [ 13 ] The accident reconstruction expert came to the following conclusions: 1) The primary contributing factor(

s) which led to the collision were the driver of the Dodge entering into the eastbound travel lane of eastbound Highway 3 before confirming that there were no oncoming vehicles approaching from the west. Due to the ... Snapchat video open and playing in a loop ... in the Suzuki, the driver of the Suzuki was possibly distracted and was unable to observe that the Dodge was turning eastbound onto the roadway. 2) The Dodge had just turned left onto eastbound Highway 3 from Highway 512, prior to impact.

The Suzuki was travelling east in the left travel lane of eastbound Highway 3 but west of the Dodge, prior to impact. 3) The area of impact was located on the middle of the left travel lane of eastbound Highway 3.... [ 14 ] As mentioned, the accident reconstruction expert testified that he could not complete speed calculations for the moment of the collision due to the rear differential having separated from the Dodge Ram flatbed truck and having travelled separately into the ditch. He also could not determine whether “the driver of the Suzuki was distracted”, but that was possible. III.

Grounds of Appeal [ 15 ] Ms Bakko says the trial judge erred: (

a) in determining causation had been proven beyond a reasonable doubt, rendering her verdicts unreasonable; and (

b) in law, by applying a civil negligence standard to the criminal offence of dangerous driving. IV. Standard of Review [ 16 ] The standard of review on questions of law is correctness, on questions of fact is palpable and overriding error, and on questions of mixed law and fact is palpable and overriding error unless there is an extricable error of law: Housen v Nikolaisen , 2002 SCC 33 , paras 7-37 , [2002] 2 SCR 235 ; R v Le , 2019 SCC 34 , para 23 , [2019] 2 SCR 692 .

In a circumstantial case, understanding and applying reasonable doubt concepts are questions of law: R v Bjornson , 2018 ABCA 282 , para 16 , 365 CCC (3d) 175 . [ 17 ] The test for unreasonable verdict is whether a properly instructed trier of fact acting judicially could reasonably have convicted on the evidence adduced at trial, the trial judge materially misapprehended the evidence, or the reasons demonstrate a finding to be logically incompatible with the evidence not rejected by the trial judge: R v Biniaris , 2000 SCC 15 , para 36 , [2000] 1 SCR 381; R v Beaudry , 2007 SCC 5 , paras 93-97 , [2007] 1 SCR 190; R v Sinclair , 2011 SCC 40 , paras 16-21 , [2011] 3 SCR 3; R v RP , 2012 SCC 22 , paras 9-10 , [2012] 1 SCR 746; R v Villaroman , 2016 SCC 33 , para 55 , [2016] 1 SCR 1000; Bjornson , para 17 . [ 18 ] This requires the appellate court to re-examine and to some extent re-weigh and consider the effect of the evidence, considering the standard of proof in a criminal case.

Where the Crown’s case depends on circumstantial evidence, the question becomes whether the trier of fact, acting judicially, could reasonably be satisfied that the accused’s guilt was the only reasonable conclusion available on the totality of the evidence: Villaroman , para 55 ; R v Anny , 2021 ABCA 394 , para 27 ; R v Dipnarine , 2014 ABCA 328 , para 22 , 316 CCC (3d) 357.

[19] Such a verdict in a circumstantial case is not reviewable merely because the appeal court concludes that the evidence,including its gaps, gives rise to competing inferences: R v Profeit, 2021 ABCA 379, para 74, 407 CCC (3d) 494. V. Analysis (

a) Causation [20] The convictions for dangerous driving causing death and driving over .08 causing death both require proof of factual and legalcausation. [21] Factual causation is an inquiry into the mechanism of death, in a medical, mechanical or physical sense. It is determined bythe “but for” test; but for the acts of the accused, would the victim have died: R v Maybin, 2012 SCC 24, para 15, [2012] 2 SCR 30; R vNette, 2001 SCC 78, para 44, [2001] 3 SCR 488. Factual causation is not at issue on this appeal.

But for Ms Bakko entering the lefteastbound lane, and travelling slowly, perhaps as slow as 8 to 16 kilometres per hour in a 110 kilometre per hour zone at night, thisaccident would not have occurred. [22] Legal causation establishes moral culpability; were Ms Bakko’s actions a “significant contributing cause” to the outcome?

The“accused’s unlawful actions need not be the only cause of death, or even the direct cause of death; the court must determine if theaccused’s actions are a significant contributing cause of death”: Maybin, para 1; R v Smithers, (SCC), [1978] 1 SCR 506,519, 522, 34 CCC (2d) 427; R v Thijs, 2022 ABKB 608, paras 175-178.

Legal causation queries whether an accused should be heldresponsible in law for the death that occurred, while guarding those not morally blameworthy from criminal punishment. “[T]he properstandard of causation expresses an element of fault that is in law sufficient, in addition to the requisite mental element, [the mens rea] tobase criminal responsibility”: Nette, para 47. [23] Ms Bakko says legal causation is not proven because of the existence of intervening acts of the other driver.

An interveningact is some other cause or event that intervenes to break or sever the chain of causation between the actions of an accused and a death:Maybin, para 23.

It acts so that the behaviour of the accused is no longer a significant contributing cause. [24] One must be cognizant of the distinction between a motorist driving in an impaired condition who is involved in an accident,and a motorist driving in an impaired condition whose impaired driving ability (as evidenced by driving conduct, or failure to react or tomake a certain judgment) comprises a contributing cause beyond the de minimis range to the victim’s bodily harm or death: R v Andre,2022 YKTC 9, para 42; R v Gentles, 2016 BCCA 68, para 14, 382 BCAC 286. [25] Ms Bakko says the trial judge erred in her consideration of legal causation by rejecting the theory of intervening cause,particularly with respect to the evidence of the speed of the Suzuki, the cell phone found on the passenger side floor, and that there wasno evidence of braking or evasive manoeuvres. [26] Ms Bakko also says the trial judge reversed the evidentiary burden when she said that although the other driver’s distractionby the cell phone was “possible”, there was no evidence the driver was looking at or distracted by the cell phone, rendering this scenario“not reasonable”.

Citing Villaroman, paras 35-43, Ms Bakko says inferences consistent with innocence do not have to arise from provenfacts, particularly when the Crown had admitted it could not disprove that the other driver was distracted by looking at her cell phone.Ms Bakko says the trial judge erred in relying on her own experience with cell phones and failing to consider other evidence thatsupported the plausibility of the distraction scenario, and using speculation and conjecture to fill gaps that the Crown could not addressby calling evidence. [27] We agree.

The trial judge erred in relying upon her own experience that cell phones “occasionally pocket dial someone ...,make emergency calls..., or are mistakenly turned on through voice or other noise activation”, and that it was logical to infer that the“jarring forces, spinning, and direction changes [the] vehicle experienced, were as likely to cause her phone to appear the way it didwhen police recovered it ... as was her attention to her phone”.

The trial judge could not have taken such judicial notice of the behaviourof the phone, and we do not take such judicial notice. [28] The Crown replies that this “distraction scenario” is a legal red herring, as there is no reasonable scenario where Ms Bakko’sactions can be characterized as a contributing cause in the de minimis range. Even if the driver of the Suzuki was speeding, drivingbadly, or distracted by her cell phone, Ms Bakko’s driving conduct was a significant contributing cause of Ms Gruninger’s death.

TheCrown points to the trial judge’s finding that Ms Bakko’s driving was dangerous and lasted for so long that it rendered a collision a nearcertainty. It says “[e]ven in cases where it is alleged that an intervening act has interrupted the chain of legal causation, the causation testarticulated in Smithers and confirmed in Nette remains the same: Were the dangerous, unlawful acts of the accused a significantcontributing cause of the victim’s death?”, citing Maybin, para 28. [29] The Crown need not negate “every possible conjecture, no matter how irrational or fanciful”.

Inferences other than guilt“must be reasonable given the evidence and the absence of evidence, assessed logically, and in light of human experience and commonsense”: Villaroman, paras 36-37. [30] We agree that legal causation was proven on the facts before the trial judge. Ms Bakko’s actions were a significantcontributing factor to this collision, regardless of whether the other driver was speeding or distracted. There was no break in the chain ofcausation.

The contributing factors by the other driver do not negate or excuse the significant contributing cause exhibited by Ms Bakko. [31] The verdict is not unreasonable; a properly instructed trier of fact acting judicially could reasonably have convicted on thisevidence.

Although the judicial notice taken by the trial judge was improper, that does not constitute a misapprehension of evidence noris it logically incompatible with the evidence to the extent that it negates Ms Bakko’s significant contributing cause of the collision. [32] This finding of legal causation is all that is necessary for the conviction for driving over .08 causing death. Additional factors

must be determined as to the conviction for dangerous driving causing death. (

b) Dangerous Driving [ 33 ] In addition to the proof of causation, a conviction for dangerous driving causing death may only be found if both the actus reus and mens rea of this offence are proven.

The trial judge properly identified that dangerous driving causing death has these two components: the prohibited conduct (the manner of driving), and the required degree of fault (marked departure from the standard of care that a reasonable person would observe in all the circumstances), citing R v Roy , 2012 SCC 26 , para 1 , [2012] 2 SCR 60. [ 34 ] The actus reus requires proof beyond a reasonable doubt that, viewed objectively, the accused was driving 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 is being operated, and the amount of traffic that at the time is or might reasonably be expected to be at that place.

It is the manner in which the vehicle was operated that is at issue, not the consequence of the driving. While the consequence may assist in assessing the risk involved, it does not answer the question of whether or not the vehicle was operated in a manner dangerous to the public: R v Beatty , 2008 SCC 5 , paras 43 , 45, 46, [2008] 1 SCR 49; Roy , paras 33-35 . [ 35 ] The mens rea requires the trier of fact to be satisfied on the balance of all the evidence that the conduct amounted to a marked departure from the standard of care that a reasonable person would observe in the accused’s circumstances.

Subjective mens rea of intentionally creating a danger for other users of the highway will always constitute a marked departure from the standard expected of a reasonably prudent driver. However, subjective mens rea is not necessary. [ 36 ] A modified objective test is to be applied in the context of the events surrounding the incident. The trier of fact must be satisfied that a reasonable person in similar circumstances ought to have been aware of the risk and the danger involved in the conduct manifested by the accused.

A lack of care must be serious enough to merit punishment: Beatty , paras 47-49 . [ 37 ] This degree of fault involves two questions: whether in light of the relevant evidence, a reasonable person would have foreseen the risk and taken steps to avoid it if possible, and whether the failure to foresee the risk and take steps to avoid it, if possible, was a marked departure from the standard of care expected of a reasonable person in the accused’s circumstances: Roy , para 36 ; R v Chung , 2020 SCC 8 , paras 23 , 24, [2020] 1 SCR 405. [ 38 ] In addressing the actus reus , the trial judge considered the manner of driving.

She said the manner of driving exhibited multiple breaches of the Use of Highway and Rules of the Road Regulation , AR 304/2002 , issued under the authority of the Traffic Safety Act , RSA 2000, c T-6 , including: s 2(1)(b): prohibition against driving a vehicle in a traffic lane nearest the centre line [here, the left lane] unless the vehicle is being driven at or near the maximum speed permitted; s 12(2)(b): prohibition against driving on “that portion of the highway that is to the left of the yellow line [the outside border of the travelling lanes] except in an emergency situation where the vehicle is disabled and it is not practicable to move the vehicle to the far right side of the highway”; s 15(1)(c): prohibition against driving a “vehicle so that the vehicle or any portion of the vehicle crosses the single solid line from one traffic lane to another”; s 15(4)(b): prohibition against driving a vehicle “so as to cross a solid or broken line” when the movement cannot be made in safety; s 34(2): prohibition against turning a vehicle to the left across the path of an approaching vehicle “unless the turn can be completed in safety”; and s 38: when a vehicle is required to stop, proceeding before the condition of the traffic on the highway is such that the vehicle can enter the highway in safety, and failing to yield the right of way to all vehicles and pedestrians approaching that person’s vehicle and that are on the highway being entered. [ 39 ] The trial judge concluded in her reasons that Ms Bakko’s “several driving errors, all of which put her on the collision path with someone on Highway 3 that evening … posed a significant risk of collision.” She said each of the driving errors on its own posed some risk, but “[t]aken together, they posed danger to other highway users.” That constituted the actus reus of the offence. [ 40 ] As to mens rea , the trial judge addressed whether or not that manner of driving dangerous to the public constituted a marked departure from the standard of care.

She concluded that the manner of driving was “a marked departure from the standard of care that a reasonable person would observe in the circumstances.” She said when Ms Bakko’s blood alcohol content “is added to the mix, it is abundantly clear that the marked departure test has been met.” The trial judge said: A reasonable person would not consume alcohol in excess of the legal limit and then drive a vehicle on a highway.

A reasonable person would foresee the risk inherent in such a decision and take steps to avoid it by not driving at all . [emphasis in original] [ 41 ] The trial judge asked herself the two questions in Roy , para 36 , noted above.

She acknowledged that “[c]areful attention must be paid to the fault element of the offence of dangerous driving if we are to avoid making criminals out of careless drivers.” She acknowledged that simple carelessness may result in tragic consequences, but courts cannot criminalize simple negligence, “conduct that is not criminally blameworthy.” [ 42 ] The trial judge concluded Ms Bakko’s actions were “much more than momentary inattention.” She said a reasonable person in these circumstances would have foreseen the risk of entering the highway in the left lane where vehicles travelled at highway speeds.

A reasonable person would have foreseen that entering the highway at night at low speed was “too risky and waited to enter.” A reasonable

person would have foreseen the risk to themselves and other people on the highway of having a blood alcohol content exceeding .08, and “they would not have driven in that condition so as to avoid the risk.” Taken together, the trial judge concluded that Ms Bakko’s failure to avoid these risks was “a marked departure from the standard of care expected of a reasonable person in the circumstances.” [ 43 ] The trial judge correctly identified the difference between proof of actus reus and mens rea , described the dangerous manner of driving exhibited by Ms Bakko as proof of the actus reus and the foreseeable marked departure from the standard of care expected of a reasonable person as proof of the mens rea .

We decline to interfere with the trial judge’s decision with respect to dangerous driving. [ 44 ] However, the unique combination of the circumstances in question, although it does not alter determination of guilt, may have a direct bearing on Ms Bakko’s moral culpability or blameworthiness to be considered on the sentence imposed. [ 45 ] If Ms Bakko chooses to amend her Notice of Appeal to seek permission to appeal against sentence, that amendment and permission to appeal are granted.

In that case the terms and conditions of Ms Bakko’s judicial interim release order remain in place pending determination of her sentence appeal. [ 46 ] If Ms Bakko chooses not to amend her Notice of Appeal and seek permission to appeal against sentence, she is to report to the authorities in Lethbridge within 48 hours of the filing of these reasons. VI. Conclusion [ 47 ] The appeal is dismissed. Appeal heard on December 7, 2023 Memorandum filed at Calgary, Alberta this 5 th day of January, 2024 Martin J.A. Feehan J.A. Kirker J.A. Appearances: E.J. Frank for the Respondent K.L. Sitar for the Appellant