Her Majesty the Queen ) Kaley Tschetter ) for the Crown ) v. ), 2018 MBPC 27

2018 MBPC 27 IN THE PROVINCIAL COURT OF MANITOBA Boissevain Centre BETWEEN: Her Majesty the Queen ) Kaley Tschetter ) for the Crown ) And ) ) ) Jacques DUPREEZ ) Patrick Sullivan ) for the Accused Accused ) ) ) Reasons for Decision delivered: ) August 20, 2018 at the City of Brandon, ) in the Province of Manitoba Hewitt-Michta, A.C.J Introduction [ 1 ] Marvina WOMBDISKA died in a motor vehicle collision on Highway 10 outside Boissevain, Manitoba on the morning of April 16, 2016. She was the front seat passenger in a sport utility vehicle [SUV] struck by a semi-trailer truck driven by Jacques DUPREEZ.

The posted speed limit was 100 kilometers per hour. The semi-trailer entered the lane of travel for oncoming vehicles on a curve causing the collision and Ms. Wombdiska’s death. Ms. Wombdiska was wearing her seatbelt. The driver of the SUV could not have done more to avoid the impact. Issue [ 2 ] The only issue is whether the crash was the result of Mr. Dupreez operating the semi-trailer in an imprudent manner. Law [ 3 ] Section 95(3) of the Highway Traffic Act, CCSM c.

H60 prohibits operation of a vehicle at a speed or in a manner that is not reasonable and prudent having regard to the conditions and to actual and potential hazards. The

section specifies that “ no person shall drive a vehicle on a highway at a speed otherwise permitted under this Act where…(

b) any factor exists in the face of which failure to reduce that speed…constitutes a danger to any person or property visible to the driver .”

[4] Highway Traffic Act offences are regulatory offences of strict liability. The Act penalizes driving conduct that demonstrates amarked departure from that of the reasonably prudent driver in the same circumstances. The crown need not prove mens rea but there is amental element implicit in the actus reus. The crown is not required to establish intent but rather knowledge of the circumstancescomprising the actus reus of the offence. [R. v. Sault Ste. Marie (1978) (SCC), 2 S.C.R. 1299; R. v.

Daviault [1994) (SCC), 3 S.C.R. 63] [5] The Court should not speculate whether, if the accused used greater attention or proficiency, the accident would have beenavoided. The issue is whether the evidence establishes beyond a reasonable doubt that the accused, considering the circumstances ofwhich he was aware or ought to have been aware, failed to drive to the standard of the reasonably prudent driver. Evidence [6] Adam WEST-BURNHAM was operating an empty semi-trailer following approximately a half mile behind Mr. Dupreez. Hetestified he was traveling at roughly 90 to 100 kilometers per hour and estimated Mr.

Dupreez was at the same speed because Mr. West-Burnham was neither gaining on nor falling behind Mr. Dupreez. He witnessed the collision, caused when Mr. Dupreez slipped on acurve and entered the oncoming lane of traffic. [7] Mr. West-Burnham said it was raining when he left Bottineau, North Dakota that morning and that it began to sleet around theU.S.A.-Canada border. He observed some slush on the road after entering Canada. He said he slowed some due to the conditions. Theaccident occurred about ten minutes after he entered Canada.

At the scene of the collision, he noted some slush on the road but it did notappear to him to be slippery. When shown photographs taken by RCMP of the road and weather conditions, he said the weather and roadconditions were better at the time of the collision than is depicted in the photographs taken sometime after police arrived on scene. [8] Constable GOETZ responded to the report of a collision. The dispatch time was 11:19 AM and he travelled from Killarney,arriving on scene about 11:45 AM. Conditions were clear in Killarney but deteriorated as he neared the scene of the accident.

He notedthe roads were “getting slick”. At the scene, he observed the highway to be slippery to walk upon owing to a combination of sleet andrain. He agreed conditions seemed to be “rapidly deteriorating” as he travelled to the scene and that conditions worsened while he was atthe collision site. He could not attest to the conditions at the time of the accident.

He testified he himself “drove to the conditions” inorder to arrive safely but could not recall the speed at which he travelled or whether he ever decreased speed because of the conditions. [9] Constable BRISCOE was qualified to testify as an expert in the subject area of collision reconstruction. He attended the scene butdid not arrive until 1:45 PM. He relied on witness information about the road and weather conditions closer in time to the accident. Hereferenced photographs taken by investigating officers. He testified that he understood the conditions at the time of the accident to be icyand slushy.

At page one of his Collision Investigation Report, Constable Briscoe describes the road as “snow/slush covered” at the timeof the collision.

He said he understood there had been a snowstorm and that the temperature had then warmed, causing a change inconditions between the time of the accident and his arrival at the scene. [10] Constable Briscoe imaged the Event Data Recorder from the SUV and determined it was travelling at 109 kilometers per hour justbefore the collision and that the driver applied the brakes decreasing the speed to 98 kilometers per hour, with the last speedmeasurement at 0.5 seconds prior to the collision.

He explained that the semi-trailer truck was not equipped with an Event Data Recorderso corresponding information was unavailable for Mr. Dupreez’s vehicle. [11] Constable Briscoe’s expert opinion is that the primary cause of the accident was Mr. Dupreez’s failure to adapt his driving todeteriorating road conditions. [12] Mr. Dupreez testified. He is an experienced truck driver. He started that morning in Grand Forks, North Dakota and had a load ofsoymeal. He conducted a pre-trip inspection of his semi-tractor truck that morning to ensure his vehicle was in good condition. [13] Just before crossing the border Mr.

Dupreez noticed a light rain or drizzle beginning. From the U.S.A.-Canada border onwards, hesaid it was raining. While at the border he noticed periodic small icicles forming on his windshield. [14] Mr. Dupreez observed the road to be wet. The topography in that area is hilly and the road is curvy and sheltered by wooded areason both sides of the highway most of the way. He was able to negotiate curves without difficulty; traction was good. Approaching the

scene of the collision the vehicle was not sliding or skidding. [ 15 ] Mr. Dupreez testified that he regularly adapts his manner of driving to conditions, most notably accounting for visibility, road conditions, and the condition of the vehicle. He said there were no visibility issues that day; that the road was wet but not icy; and there were no mechanical concerns or issues with his vehicle. He passed through numerous small towns and had occasion to utilize the brakes and to gear down without issue. [ 16 ] Just prior to the crash, Mr. Dupreez said he was on an incline and encountered the start of a curve.

He described moving out of the previously wooded surroundings into an open area, He noted it was windy as he drove away from the shelter of the trees. The truck did not respond to his attempts to steer or to brake. He was unable to negotiate the curve or stop the vehicle from entering the lane of travel for oncoming vehicles. He speculates he must have hit a patch of “ black ice ”. [ 17 ] Mr. Dupreez recalls the road seemed icy when he stepped out of his truck, remembering he had trouble maintaining his footing.

He insists the icy conditions in that area did not accord with the conditions he had encountered up to that point on the trip. [ 18 ] Mr. Dupreez was unable to say with certainty how fast he was travelling at the time of the collision or in the moments leading up to it. His cruise control was not set. Because of the hilly terrain, he believes his speed would have fluctuated, as the semi-trailer truck would have slowed whenever the road inclined and gathered speed when on a decline.

His best guess was that he would have been travelling about 90 kilometers an hour at the critical time because he had a full load and was travelling on an incline. He conceded he might have been at the speed limit prior to the incline. [ 19 ] Mr. Dupreez testified it began to snow after he was out of his vehicle helping the occupants of the SUV. [ 20 ] In cross-examination, Mr. Dupreez agreed with the crown’s suggestion that he knew there was a risk given the weather conditions that the highway could become icy.

He insisted, however, that he experienced no indications it was actually icy until he lost control on the curve. Credibility [ 21 ] All of the witnesses, including Mr. Dupreez, seemed credible. I did not have notable concerns about the reliability of their evidence or their recall of the incident. Each witness acknowledged details of which he was unsure. Any inconsistencies in their accounts are indicative of a critical incident that happened very quickly; their varied vantage points; and the variability of the road and weather conditions.

Analysis [ 22 ] The crown relies heavily upon the opinion of its expert witness - that the collision was caused by Mr. Dupreez’s failure to tailor his speed to conditions. The opinion of Constable Briscoe is only as good as the assumptions upon which it relies. [ 23 ] The conditions that day evolved and changed quickly. The first police responder did not arrive until 25 minutes after the collision. The photographs upon which Constable Briscoe relied are of conditions at least half an hour after the incident. [ 24 ] Constable Briscoe did the best he could with the information available to him.

His opinion appears to rely on an assumption that conditions were worse than they were. Much of his evidence was instructive, particularly his trained observations of the scene, technical explanations related to the presence and absence of markings on the roadway, and his analysis of the Event Data Recorder information. I am mindful, however, that the ultimate issue – whether imprudent driving is proven beyond a reasonable doubt – is decided by the trier of fact, not the crown’s expert.

[ 25 ] Adam West-Burnham, an experienced semi-trailer truck driver, travelled the same path in the same conditions as Mr. Dupreez on April 16. He was proximate enough to witness the crash. He was travelling at the same speed and in the same manner as Mr. Dupreez. He described wet conditions with some slush on the road. He confirmed that he and Mr. Dupreez were travelling at roughly the same speed of between 90 and 100 kilometers per hour. He made the same assessment as to a prudent speed and manner of driving as Mr. Dupreez. [ 26 ] An SUV is obviously very distinguishable from a loaded semi-trailer truck.

Acknowledging that difference, it remains noteworthy that the driver of the SUV was travelling at a speed of 109 kilometers per hour, seconds prior to the crash. The driver bears no fault for the collision but the speed invites an inference that the SUV driver recognized nothing in the weather or road conditions that persuaded him or her to reduce the speed of that vehicle. [ 27 ] There is testimonial and photographic evidence corroborating the defence assertion that the collision occurred in an open space just beyond a stretch of highway sheltered on both sides by wooded areas.

It is quite possible the wind, temperature, and precipitation conspired to produce an icy

section unanticipated and not previously encountered by Mr. Dupreez in his travels that morning. [ 28 ] Having considered the totality of the evidence, I am unable to conclude it rises to the level of establishing beyond a reasonable doubt that Mr. Dupreez’s speed or manner of driving at the critical time demonstrated a marked departure from that of the reasonably prudent driver in the same circumstances. The evidence fails to persuade me that Mr. Dupreez had the requisite knowledge of the circumstances required to conclude he is guilty of driving imprudently. Conclusion [ 29 ] Mr.

Dupreez is acquitted. [ 30 ] The death of Marvina Wombdiska is tragic. I extend to her family and friends my sincerest sympathy for their heart-breaking loss. “original signed by ACJ Hewitt-Michta” Associate Chief Judge S. Hewitt-Michta