R. v. Le, 2019 BCPC 138

Citation: R. v. Le 2019 BCPC 138 Date: 20190627 File No: 246245-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Criminal Division) REGINA v. THI HONG HA LE REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE R.P. HARRIS Counsel for the Crown: A. De Smet Counsel for the Defendant: Tom Do Place of Hearing: Vancouver , B.C. Date of Hearing: May 27, 28, 29, 2019 Date of Judgment: June 27, 2019 INTRODUCTION

[ 1 ] On January 29, 2017, Ms. Le was the driver of a motor vehicle that was involved in a head on collision. Investigation of the accident determined that Ms. Le had travelled north in the southbound lanes of Knight Street, through the intersection of East 41 st Avenue and into several vehicles that were stopped on the north side of the intersection and facing south in the southbound lanes. [ 2 ] Ultimately, Ms. Le, was charged with dangerous driving contrary to section 249 (1) (

a) of the Criminal Code . Ms. Le pled not guilty to the charge. During the trial the Crown called a number of witnesses. Entered as exhibits were photographs, maps, diagrams and a dash cam video. Ms. Le did not call any evidence. BRIAN PHAN [ 3 ] Mr. Phan is the son of Ms. Le and he was in the front passenger seat at the time of the accident. [ 4 ] On the evening of the accident, Ms. Le had driven Mr. Phan and his girlfriend from Vancouver to Richmond where they dropped off Mr. Phan’s girlfriend. Thereafter, Mr. Phan and his mother went to a local restaurant. During their meal Mr.

Phan noted that his mother was quiet. [ 5 ] After their meal, Ms. Le began driving the pair back to their home in Vancouver. During the drive, there was discussion about Mr. Phan using his mother’s car for his road licensing test. In response, Ms. Le indicated that they would get a new car. It was Mr. Phan’s perspective that his mother seemed to be frustrated about their financial situation. [ 6 ] The pair travelled north on Knight Street and they stopped in a line of cars that were waiting at the red light at the intersection of East 41 st Avenue and Knight Street. While waiting for the light, Ms.

Le turned to her son and said, “We win we’re going to heaven.” She then slowly turned the car to the left and she entered the southbound lanes of Knight Street. Ms. Le began to accelerate north while travelling in the southbound lanes. Mr. Phan started screaming for his mother to stop. He noticed that she looked at him and that she appeared to be smiling. [ 7 ] The vehicle continued north in the southbound lanes and as per Mr. Phan’s estimation, they reached a speed of 60 to 70 miles per hour.

The vehicle entered the intersection of East 41 st Avenue and drove directly into the cars that were stopped on the north side of the intersection facing south and in the southbound lanes. Mr. Phan testified that his mother did not take any steps to avoid the collision. Specifically, she did not brake or slow, nor did she try to change the vehicle’s direction of travel. SING WONG [ 8 ] Mr. Wong was travelling south on Knight Street approaching East 41 st Avenue when the accident occurred. At the time, traffic was heavy and the roads were damp. Inside Mr.

Wong’s vehicle was a dashboard mounted video camera (dash cam). The dash cam recorded the accident and a DVD of the recording was entered as an exhibit. [ 9 ] As for the accident, Mr. Wong was travelling south on Knight Street and he was approximately ½ a block north of East 41 st Avenue when he saw a vehicle that was about 2 blocks to the south of the intersection move into the southbound lanes of Knight Street and travel north. The vehicle continued north in the south lanes at an estimated speed of 50 to 60 kilometres per hour.

This vehicle then collided with the cars that were stopped on Knight Street facing at East 41 st Avenue and facing south. [ 10 ] On seeing the accident, Mr. Wong stopped his vehicle and assisted Mr. Phan. Emergency personnel arrived on scene after approximately 5 minutes at which point Mr. Wong the left the scene. He then dropped his family off at his home and he then returned to the scene where he gave the police a copy of the video from his dash cam. CONSTABLE MONTAGUE [ 11 ] Constable Montague attended the accident scene in his capacity as a Collision Investigator with the Vancouver Police Department.

In his evidence, Constable Montague described the accident scene, the accident location and he confirmed the photographs. [ 12 ] As for the location, Constable Montague testified that the intersection of Knight Street and East 41 st Avenue has traffic lights that control traffic in all directions. Each roadway has 6 lanes; 3 in each direction and a left turn lane, with traffic medians separating the left turning traffic from the other vehicles. The speed limit is 50 kilometres per hour and the amount of traffic varies depending on the time of day.

The intersection was well lit and on the night of the accident it was cloudy and the road was wet. JONATHAN WORNELL [ 13 ] On the night of the accident, Mr. Wornell was driving on Knight Street and he saw the accident occur. In this regard, he was driving north in the centre line lane and near East 45 th Avenue when he saw a small silver car that was about 3 to 4 blocks south of East 41 st Avenue pull from the northbound lane into the southbound lane and travel north on Knight Street toward the red light at East 41 st Avenue.

The car then entered the intersection and collided with 2 cars that were stopped on Knight Street at East 41 st Avenue facing south. When the collision happened Mr. Wornell saw the small silver car lift off of the ground. [ 14 ] After the collision, Mr. Wornell went through the intersection and he pulled to the side of the road. He then assisted an Asian male get out of the small silver car and while he was doing this he saw an Asian female who Mr. Wornell believes was the driver of the small silver car. DARNELLE MOORE [ 15 ] At approximately 8:30 pm, Ms.

Moore was the passenger in a vehicle driven by her husband, Mr. Wornell. At the time they were travelling north on Knight Street when her husband started commenting about a car that was to the north of them.

[ 16 ] In response, Ms. Moore looked up and she saw a vehicle in the area of East 45 th Avenue travelling north. She estimated that the vehicle was travelling slightly above the speed limit which she estimated to be between 60 to 80 kilometres per hour. Ms. Moore does not recall if the vehicle changed speeds thereafter. [ 17 ] According to Ms. Moore, the vehicle continued north and it entered the intersection of East 41 st Avenue. It is Ms. Moore’s belief that the vehicle entered the intersection on a red light and that the light then changed to green.

The vehicle continued driving straight until it collided with the cars that were stopped on the north side of the intersection facing south in the southbound lanes. RICHARD LAUMAILLET [ 18 ] Mr. Laumaillet was the driver of a sprinter van that was struck by Ms. Le’s vehicle. According to Mr. Laumaillet, he was stopped for a red light at Knight Street and East 41 st Avenue. He was facing south, on the north side of the intersection and he was the first vehicle in the line. [ 19 ] While waiting for the light to turn green Mr.

Laumaillet was looking south and he saw a vehicle travelling north and cross into the southbound lane, enter the intersection and drive directly into his vehicle and others. [ 20 ] According to Mr. Laumaillet the vehicle was travelling quite fast and he estimates it was travelling at approximately 80 kilometres per hour. Mr. Laumaillet testified that he saw nothing to indicate that the driver was trying to avoid the collision. Specifically, no braking, swerving or signals. [ 21 ] The force of the impact was significant. It caused substantial damage to Mr.

Laumaillet’s vehicle and the force of the collision moved his vehicle back and to the right by about 4 to 6 feet. He also noted that one of the SUVs that had been hit moved about 10 feet. FALICIA ROGERS [ 22 ] At about 8:30 pm, Ms. Rogers was walking and approaching the southeast corner of Knight Street and East 41 st Avenue when she heard the sound of a vehicle accelerating. Ms. Rogers looked up to see silver Honda accelerating through the intersection. She saw the Honda move into the oncoming lane and crash in at least 3 vehicles that were stopped at the intersection facing south. SHIFRA DAY [ 23 ] Ms.

Day was on the southeast corner of Knight Street and East 41 st Avenue when the accident happened. While at the intersection Ms. Day noticed the vehicles slowing and she saw a beige 4 door vehicle going north. This vehicle entered the intersection and moved to the lane that was immediately west of the Knight Street left turn lane and drove directly into the oncoming cars. MARLON LIPINSKI [ 24 ] Mr. Lipinski was qualified as an expert capable of giving opinion evidence on the mechanical fitness of passenger vehicles. [ 25 ] On February 16, 2017, Mr. Lipinski performed a mechanical inspection on Ms.

Le’s Honda Accord. Mr. Lipinski observed that the vehicle had extensive damage and that all systems were functioning properly. He noted there was a lot of damage to the steering; however, he was satisfied that there was nothing in the steering system that could have caused the accident. [ 26 ] Mr. Lipinski noted that the tires on the vehicle were all the same size but they were mismatched. He also noticed some variances in the tire pressure. Further, the tire on the right front of the vehicle was flat and he attributes this to having been caused by the accident. [ 27 ] In

summary, Mr. Lipinski examination of the vehicle failed to disclose anything that caused or contributed to the accident. FINDINGS [ 28 ] The above evidence was not challenged. I find the witnesses were credible and reliable. I did observe some minor inconsistencies, however, minor inconsistencies are to be expected and in the circumstances, they did not detract from substance of the evidence. [ 29 ] Based on all of the evidence I find the following: [ 30 ] On January 29, 2017, at approximately 8:30 pm, Ms. Le was driving a tan 4 door Honda Accord and at that time her son, Mr.

Phan, was a passenger in the front seat. The two had been in Richmond and travelled north on Knight Street. During the trip there was nothing particularly unusual about Ms. Le’s driving. [ 31 ] When they reached the area of East 45 th Avenue and Knight Street Ms. Le slowed or stopped with her vehicle facing north and in a northbound lane. She then looked at her son and said, “We win we’re going to heaven.” Ms. Le then steered her vehicle to the left and into a southbound lane of Knight Street. She then drove north in the southbound lane and she accelerated to approximately 60 kilometers per hour. Ms.

Le drove at least 3 city blocks in the wrong lane and as she drove her son shouted at her to stop but she continued. At one point Ms. Le turned and looked at her son and smiled. [ 32 ] Ms. Le then entered the intersection of Knight Street and East 41 st Avenue against a red light. She then drove directly at and into the cars that were stopped facing south in the southbound lanes of Knight Street. At no time did Ms. Le brake, steer away or issue a warning. [ 33 ] At the time of the accident, the roads were wet, traffic was moderate and the roadway was a major artery where one can expect

to encounter traffic and pedestrians at all hours of the day. THE LAW The legal elements of dangerous operation of a motor vehicle was discussed in R. v. Beatty, [2008] 1 S.C.R. at paragraph 43, where Madam Justice Charron restated the test for dangerous driving as follows: (

a) The Actus Reus The trier of fact must be satisfied beyond a reasonable doubt that, viewed objectively, the accused was, in the words of the section, 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”. (

b) The Mens Rea The trier of fact must also be satisfied beyond a reasonable doubt that the accused’s objectively dangerous conduct was accompanied by the required mens rea . In making the objective assessment, the trier of fact should be satisfied on the basis of all the evidence, including evidence about the accused’s actual state of mind, if any, that the conduct amounted to a marked departure from the standard of care that a reasonable person would observe in the accused’s circumstances.

Moreover, if an explanation is offered by the accused, then in order to convict, the trier of fact must be satisfied that a reasonable person in similar circumstances ought to have been aware of the risk and of the danger involved in the conduct manifested by the accused. APPLICATION [ 34 ] Turning to Ms. Le’s manner of driving, after considering all of the circumstances I am satisfied beyond a reasonable doubt that Ms. Le’s driving was objectively dangerous. I reach my conclusion because while traveling on a major roadway Ms.

Le maneuvered her vehicle into the oncoming lanes of traffic, thereafter she accelerated to at least 60 kilometres per hour and she continued to drive in the wrong lane for at least three blocks. Thereafter, and while still in the wrong lane, Ms. Le entered a major intersection against a red light and she drove directly into the vehicles that were stopped facing her. I find that the vehicles she struck were visible to Ms. Le the moment she drove into the oncoming lane and continuously until impact. [ 35 ] I now turn to Ms.

Le’s state of mind, I am satisfied beyond a reasonable doubt that when viewed objectively, Ms. Le’s manner of driving constituted a marked departure from the standard of care that a reasonable person would observe in Ms. Le’s circumstances. Specifically, she knowingly and deliberately drove into the oncoming lane, accelerated to 60 kilometres per hour, entered a major intersection against a red light, and she deliberately crashed into the vehicles that were stopped. [ 36 ] Notably, Ms.

Le’s conduct is similar to that discussed by Madam Justice Charron at paragraph 47: [47] In determining the question of mens rea , the court should consider the totality of the evidence, including evidence, if any, about the accused’s actual state of mind. As discussed at length above, the mens rea requirement for the offence of dangerous driving will be satisfied by applying a modified objective test.

This means that, unlike offences that can only be committed if the accused possesses a subjective form of mens rea , it is not necessary for the Crown to prove that the accused had a positive state of mind, such as intent, recklessness or wilful blindness. Of course, this does not mean that the actual state of mind of the accused is irrelevant.

For example, if proof is made that a driver purposely drove into the path of an oncoming vehicle in an intentionally dangerous manner for the purpose of scaring the passengers of that vehicle or impressing someone in his own vehicle with his bravado, the requirement of mens rea will easily be met… CONCLUSION [ 37 ] For the above reasons, I find the evidence proves beyond a reasonable doubt that Ms. Le operated her motor vehicle in a manner that was dangerous to the public having regard to all of the circumstances including the nature, condition, use of the roadway and the amount of traffic.

Accordingly, I find her guilty of dangerous driving contrary to section 249 (1) of the Criminal Code . ____________________________ The Honourable Judge R.P. Harris Provincial Court of British Columbia