R. v. Vandal, 2015 MBPC 32

R. v. Vandal Citation: 2015 MBPC 32 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) Craig Savage, ) ) for the Crown - and – ) ) Crystal Vandal ) Saul Simmonds, ) ) ) for the Accused ) Judgment delivered: ) June 25, 2015 ROLSTON, P.J. Introduction [ 1 ] On September 21, 2013, Jeanne Haug and Brittney Chegus were driving on Gateway Road in the City of Winnipeg. Suddenly, and seemingly without explanation, a vehicle veered from oncoming lane at a high rate of speed and collided head on with their vehicle. In the blink of an eye the lives of Ms. Haug and Ms.

Chegus were taken, leaving family and friends in grief that is incomprehensible. [ 2 ] Ms. Crystal Vandal was behind the wheel and Mr. Carl Balan was the passenger of the offending vehicle. Ms. Vandal has been charged with 2 counts of careless driving cause death pursuant to the Highway Traffic Act . Careless driving is a strict liability offence, which means that the Crown does not need to prove that Ms. Vandal intentionally drove carelessly. The Crown does have to prove that the actions taken by Ms. Vandal were voluntarily undertaken and caused the deaths of Ms. Haug and Ms. Chegus. [ 3 ] Ms.

Vandal testified that her passenger suddenly grabbed the wheel of the car in the course of an escalating argument, and that her actions to attempt to regain control of the vehicle were prudent in the circumstances. [ 4 ] The Crown argues that even if the court accepts Ms. Vandal’s explanation, the speed that Ms. Vandal was going contributed to the crash in a significant way and that she therefore is guilty of driving carelessly and should be convicted. [ 5 ] In order to convict Ms. Vandal of careless driving cause death, the Crown must establish beyond a reasonable doubt that Ms.

Vandal voluntarily participated in acts that can be considered driving carelessly. [ 6 ] Regardless of the tragedy of the events of September 21, 2013, the onus remains on the Crown to prove its case. A reasonable doubt cannot be based on sympathy or prejudice. It is doubt which is based on reason and common sense and which must be logically based upon the evidence or the lack of evidence. The burden on the Crown is high. Even if the Court believes that Ms. Vandal probably did drive carelessly, she must be acquitted of the charges. [ 7 ] The court is tasked with determining: 1) Whether Ms.

Vandal bears responsibility for the act of veering into the oncoming lane of traffic; 2) If the court accepts she was not responsible for veering into the oncoming lane of traffic, whether the speed that she voluntarily drove the vehicle prior to the crash amounts to driving without due care or attention or without reasonable consideration for other persons on the road; 3) If her voluntary speed does amount to careless driving, whether that conduct contributed to the crash. Credibility [ 8 ] Before discussing how the law applies to this case, it is necessary to establish what facts have been proven in court.

A Judge is

entitled to believe all, some, or none of any witnesses evidence. [ 9 ] Since Ms. Vandal has testified in this matter, and due to the fact that the Crown has the obligation to prove the case beyond a reasonable doubt, the court is required to resolve issues of credibility according to the case of R. v.

W.D. 1) If the court believes the testimony of the accused that she did not commit the offence charged, it must find her not guilty. 2) Even if the court does not believe the testimony of the accused, if it leaves a reasonable doubt about an essential element of the offence, the court must find her not guilty of the offence. 3) If the court does not know who to believe, it means there is reasonable doubt and must find the accused not guilty. 4) Even if the testimony of the accused does not raise a reasonable doubt about an essential element of the offence charged, if after considering all the evidence that is accepted, the court is still not satisfied beyond a reasonable doubt of guilt, then it must acquit. [ 10 ] That being said, most of the evidence called before the court was not seriously contested by either party.

That is to say, in most instances, neither opposing party suggested that any of witnesses were being untruthful or were mistaken. As such, there is no need to go through a detailed analysis of credibility at this stage other than specifically identifying how issues of credibility were resolved in those specific instances where there is contest. [ 11 ] Ms. Vandal testified that she has been in an “on again, off again” relationship with the father of her child for the better part of a decade. On September 21, 2013 the two were not in a relationship. According to Ms. Vandal, Mr.

Balan had been violent in the past with her, and had a short temper. Also, at that time, there were issues as to unpaid child support from Mr. Balan to Ms. Vandal. Nonetheless, Ms. Vandal recognized the need to co-parent with Mr. Balan and agreed to go for dinner with him. [ 12 ] After dinner, Ms. Vandal drove Mr. Balan back to the area where he lived. Enroute, their conversation turned to outstanding finances between them which led to argument. Ms. Vandal described that the conversation began to get heated as they stopped at a Mac’s convenience store so Mr. Balan could buy cigarettes.

The Mac’s store was near the location where the crash ultimately took place. After stopping, conversation between them became even more heated. At this point in time, Ms. Vandal was driving north on Gateway Road. [ 13 ] Road conditions were dry and clear according to each witness. This is supported by photographs contained in Exhibit 2 on the collision reconstruction report filed in court. Gateway Road is also depicted in the report and is shown as a straight artery connecting residential streets on both the east and west sides. Gateway Road has one lane for northbound traffic and one lane for southbound traffic.

The speed limit is 60 kilometres per hour. [ 14 ] Although Ms. Vandal admits that she was speeding, she testified that she was driving with due care and attention. She estimated that she was going 70-75 kilometres per hour. The Crown spent some time in cross-examination on this issue. At one point, Ms. Vandal suggested that she was only going 70 kilometres per hour. [ 15 ] Another witness, Mr. Holmes, who was following Ms. Vandal’s vehicle as it travelled down Gateway Road after executing a four-way stop, estimated that Ms.

Vandal accelerated to approximately 80 kilometres per hour prior to the second instance that the vehicle’s speed increased. It is important to note that each party was estimating based upon their own experience driving and based upon their own relative perspective. [ 16 ] Ms. Vandal presented as an honest witness who was doing her best to fairly answer the questions posed to her as to a detail that she did not precisely recall. Her lack of precision as to her speed in her testimony does not in my view equate to a lack of attention as to her speed at the time she was driving. I find that while Ms.

Vandal controlled the vehicle as she drove north prior to the collision, she was speeding at a rate between 10 – 20 kilometres per hour over the speed limit. Mr. Holmes confirmed that Ms. Vandal’s driving was initially unproblematic in every other respect. [ 17 ] As Ms. Vandal approached Buddin Drive, the argument between her and Mr. Balan continued to escalate. Suddenly, Mr. Balan leaned toward Ms. Vandal in a manner that caused her to flinch out of fear for what he was about to do to her. Mr.

Balan then grabbed the steering wheel with his right hand and pulled the wheel causing the vehicle to swerve to the right. Ms. Vandal pulled the wheel back toward the left, but testified that Mr. Balan still had his hand on the wheel and was pulling it toward the right. As Ms. Vandal continued to try to correct the vehicle’s path, Mr. Balan let it go, causing Ms. Vandal to over correct the steering wheel. She testified that the next thing she recalled is the sound of sirens attending to the accident. [ 18 ] Scott Wlasichuk was driving his own vehicle southbound towards Ms.

Vandal’s car on Gateway Road at the same time. He was approximately ½ block north of Buddin Drive. Mr.Wlasichuk testified that his attention was drawn to the vehicle because he noticed that the headlights were swaying back and forth on the vehicle in front of it within its lane, and then suddenly the vehicle veered into oncoming traffic. This evidence supports the account given by Ms. Vandal as to what was occurring in the vehicle prior to the collision. [ 19 ] Mr. Holmes testified that just prior to veering into the oncoming lane, Ms. Vandal’s vehicle “took off faster”.

According to calculations done by the scene reconstruction, Ms. Vandal’s vehicle was going a minimum of 103 kilometres per hour at impact. It is agreed by counsel that the reconstruction expert was unable to say how long the vehicle had been travelling at that speed. Ms. Vandal testified that she does not recall touching any of the pedals after Mr. Balan interfered with her driving. However Ms. Vandal did say that she could have hit the gas, on account of her reaction when Mr. Balan grabbed the steering wheel, or in the midst of attempting to hit the brake to stop the vehicle. Ms.

Vandal also indicated that she initially flinched when Mr. Balan motioned towards her. This was premised on a history of violence between the two of them. It is conceivable that part of that flinching motion entailed Ms. Vandal’s foot involuntarily depressing the gas pedal. What is clear is that the vehicle did suddenly increase speed in the midst of swerving in the lane. There was no reason for Ms. Vandal to intentionally increase vehicle speed at this point. Her explanation is plausible given that she would have been surprised by the actions of Mr.

Balan and was desperately trying to regain control of the vehicle.

[ 20 ] As indicated earlier, there has not been any evidence called to suggest that the events in the Vandal vehicle transpired any differently than as described by Ms. Vandal. Her account is supported by independent evidence as to the actions of her vehicle. The court therefore accepts her version of what occurred just prior to the collision. [ 21 ] Mr. Holmes testified that when he approached Ms. Vandal to determine whether the occupants were okay, Ms. Vandal made a comment that she “just looked down for a second”. Ms. Vandal did not recall making that statement but did accept that she may have said that.

If she did, she told the court this may have been in reference to looking at the wheel when it was grabbed, or a reference to when she flinched. While that comment on its own does not seem to describe the events that happened in the vehicle as described by Ms. Vandal in any meaningful way, there is no evidence before the court to suggest the incident happened in any other way. Additionally, at the time, Ms. Vandal was injured and no doubt in shock as to what had transpired. Accordingly, the comments made by Ms.

Vandal do not assist the court in determining the relevant issues in any significant way. [ 22 ] Both Mr. Holmes and Mr. Wlasichuk interacted with Mr. Balan after the accident. Of note is that neither testified that they saw each other; therefore their respective interactions must have been at separate times. Mr. Holmes described Mr. Balan as seeming angry during their interaction. While Mr. Wlasichuk did not note the same demeanor, his interaction did occur at a different point. Both witnesses appeared to be doing their best to recall details of these events.

The court accepts both accounts as to the observations of Mr. Balan. Given that Mr. Balan was travelling in the offending vehicle, one would think that he would have been concerned about the well being of the occupants of the other vehicle, or perhaps of the vehicle he was in. There was no outward reason for him to appear angry. This is significant as it also supports Ms. Vandal’s description of Mr. Balan’s manner and therefore her version of events. Is Ms. Vandal responsible for the act of veering into the oncoming lane of traffic? [ 23 ] In R . v.

Cooke , the court analyzed what elements are required to be present in order to secure a conviction for driving carelessly. While the Crown does not have to prove a guilty intention to commit the act, there is a limited mental element that must be proven as to the actions of driving carelessly.

The court described that mental element at paragraph 29 by saying “the minimum necessary mental element is not intention, but rather the knowledge of the circumstances comprising the actus reus of the offence”. [ 24 ] At this stage, the actus reus of the offence to be considered is the veering of the vehicle into oncoming traffic. [ 25 ] The Defence has argued that given the manner in which the veering action took place, that Ms.

Vandal did not voluntarily veer into the opposing lane at a high rate of speed, and therefore she is not guilty because the action itself was not of her doing. [ 26 ] In Cooke , Judge Joyal (as he then was) described Mr. Cooke’s circumstances as follows: “...the defendant should not be expected to regulate his driving behaviour premised upon a constant fear that other persons using the road might act at some critical moment, in disregard to themselves.” [ 27 ] As has already been indicated, The court accepts Ms. Vandal’s version of events. Similarly to the Cooke case, Ms.

Vandal cannot be expected to regulate her driving premised upon a constant fear that her passenger might act at some critical moment with complete disregard to themselves and others. The court takes note that the Crown did not attempt to argue otherwise. Therefore, Ms. Vandal cannot be held responsible for the events that transpired once Mr. Balan grabbed the steering wheel of the vehicle. Did the speed that Ms.

Vandal voluntarily drove prior to the crash amount to driving without due care or attention or without reasonable consideration for other persons on the road? [ 28 ] The Crown has argued that notwithstanding the defence raised by Ms. Vandal that she was nonetheless speeding and therefore should still be found guilty of careless driving causing death on the basis of her rate of travel prior to the accident. As indicated earlier, given that the court accepted that the 103 kilometres per hour speed at the time of the collision was not attributable to her actions, the court must determine this issue based upon Ms.

Vandal’s voluntary actions before Mr. Balan intervened. [ 29 ] The Crown has argued that given the speed at collision, Ms. Vandal must have been going faster than what she recalls beforehand as there would have been insufficient time to increase speed to 103 kilometres per hour from what she recalls driving. There has been no evidence called as to whether the Crown’s assertion is correct. The amount of time it takes for a Ford Explorer to increase speed from 70 or 80 kilometres per hour to 103 kilometres per hour is not within the common experience of the court.

Without evidence from an expert on this issue, the court cannot agree with the Crown’s assertion. Nonetheless, 70-80 kilometres per hour is excessive speed in light of the posted speed limit of 60 kilometres per hour. [ 30 ] The Crown has correctly argued that “evidence of excessive speed, in itself, can constitute the offence of dangerous driving”, and therefore a speed which may not attract liability under the dangerous driving provision of the Criminal Code may nonetheless attract liability under the careless driving provision of the Highway Traffic Act .

While this is the case, consideration must be given to the context in which the driving occurs in order to find liability for careless driving from speeding alone. To find otherwise would turn all speeding cases into automatic careless driving offences. [ 31 ] For example, speeding at 15 kilometres per hour over the legal limit may be speeding on a major artery in the city, but not careless.

On the other hand, if one were to go 15 kilometres per hour in a school zone during recess, the actions of the driver amount to careless driving in the circumstances. [ 32 ] The circumstances under consideration in the present case are Ms. Vandal’s driving before the intervention of Mr. Balan, in which she was travelling at 10-20 kilometres per hour over the limit at night time on a dry, clear and straight road. With all due respect to the Crown, there was nothing about her manner of driving, including the speed of the vehicle that creates unreasonable consideration for others on the road.

If her voluntary speed does amount to careless driving, did that conduct contributed to the crash. [ 33 ] Even if excessive speed in this instance did amount to careless driving, there is no evidence before the court that had Ms. Vandal been driving at the posted speed limit, prior to Mr. Balan’s interference, the outcome would have been any different. In the end, on the evidence before the court, it was Mr. Balan’s actions that caused the collision. Conclusion [ 34 ] Accordingly, the Crown has not proven beyond a reasonable doubt that Ms. Vandal is guilty of careless driving causing death and therefore the court finds the accused not guilty. Original signed by: ROLSTON, P.J.