2018 QCCA 1945, 2018 QCCA 1945

Tukalak c. R. 2018 QCCA 1945 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF QUEBEC No: 200-10-003406-175 (640-01-036965-169) DATE: NOVEMBER 16, 2018 CORAM: THE HONOURABLE YVES-MARIE MORISSETTE, J.A. JEAN BOUCHARD, J.A. SIMON RUEL, J.A. WILLIAM TUKALAK APPELLANT – accused v.

HER MAJESTY THE QUEEN RESPONDENT – prosecutor JUDGMENT [ 1 ] THE COURT – on appeal from a judgment of the Court of Quebec, District of Abitibi (the Honourable Marc Grimard), rendered on August 11, 2017, finding the appellant guilty of failing to stop at the scene of an accident knowing that bodily harm has been caused to the victim, and with dangerous driving causing bodily harm to the victim; [ 2 ] After having examined the file, heard the parties, and on the whole deliberated; [ 3 ] For the reasons of Ruel J.A., with which Morissette and Bouchard, JJ.A. agree; [ 4 ] ALLOWS the appeal, in part; [ 5 ] CONFIRMS the verdict on the charge of failing to stop at the scene of an accident only and ACQUITS the appellant of dangerous driving causing bodily harm.

YVES-MARIE MORISSETTE, J.A. JEAN BOUCHARD, J.A. SIMON RUEL, J.A. M e Sarah Plamondon For the appellant M e Audrey-Anne Veillette-Dion Procureure aux poursuites criminelles et pénales For the respondent Date of hearing: November 13, 2018 REASONS OF RUEL, J.A.

[ 6 ] The appellant was charged under subsections 252(1) (1.2) of the Criminal Code with failing to stop at the scene of an accident (hit and run) knowing that bodily harm has been caused to the victim, and under subsections 249(1) (3) with dangerous driving causing bodily harm. [ 7 ] The events occurred on May 28, 2016, in the Inuit village of Puvirnituq. The accused and the victim are long-time acquaintances. The victim testified that, at 2:00 am, after partying at a friend’s place, he woke up and decided to take a walk. He then noticed the appellant coming from behind on a VTT.

The appellant passed very close, and the victim, in reaction, extended his arm and slapped him. [ 8 ] The appellant dropped the passenger he was carrying at the end of the road and returned in the victim’s direction, moving slowly, then accelerating. The victim testified that the appellant hit him on the knees with his VTT. He tumbled down and got up. The appellant continued a bit and stopped momentarily 100 metres away from him.

Afraid that the appellant would come back, the victim ran to his friend’s place to take refuge. [ 9 ] The victim had no fracture, but said he had dislocated knees and scratches on his back, and that he could not walk for a week. [ 10 ] The appellant testified to the following. On the night in question, he was a first responder on call, sleeping at a friend’s place. One of the occupants of the place wanted a lift home, so he took her on his VTT. While on his VTT, he then noticed the victim yelling in the middle of the street. He drove past him, very slowly, and the victim started hitting him.

He braked a little and continued on. [ 11 ] He brought the passenger home. As he was coming back, the victim, still in the middle of the same street, attempted to attack him again. The appellant tried to manoeuvre away, but hit the victim accidentally at low speed. He felt a “little bump” on his VTT. The appellant then slowed down, turned around, and noticed that the victim had walked away. He then went home.

The appellant explained that he was too scared of the victim, thus the reason for not calling the police. [ 12 ] The passenger, in examination in chief by the defence, testified that the victim was in the middle of the road, yelling and punching the appellant on his VTT. According to her, the victim was inebriated. The appellant dropped her off. She then went home and did not see what happened subsequently. In cross-examination by the Crown, she contradicted herself saying that she saw the subsequent events after all: the victim was trying to get in front of the VTT and the appellant attempted to avoid him.

The judge found, rightly so, this testimony to be quite confusing. [ 13 ] The judge convicted the appellant on both counts. He dismissed the appellant’s version and explanations as being non-credible.

The judge expressed disbelief that the appellant could not avoid the victim, noting that “the roads are quite wide in Puvirnituq, there is no grass […] it’s almost like a big parking lot”. [ 14 ] The judge did not believe that the appellant failed to stop or call the police because he was scared, considering aggressive comments he made concerning the victim to the police officer who arrested him. [ 15 ] The judge concluded, without further analysis: But one thing is for sure, Mr. Beaulne [the victim] was hit and Mr. Tukalak never offered assistance or never stopped to find out what’s going on.

So, I have no hesitation in finding him guilty of the first and the second count. [ 16 ] The appellant seeks an acquittal on both counts. [ 17 ] On the charge of hit and run, he argues that his defense should have raised a reasonable doubt regarding his intent to escape civil or criminal liability. In fact, after hitting the victim, he stopped his VTT (according to the victim’s testimony) and noticed that the victim had run away, which is not consistent with an intention to escape.

There is also no evidence that he knew that bodily harm had been caused. [ 18 ] On the charge of dangerous driving, the appellant argues that the judge simply did not assess his conduct in light of all the circumstances.

The appellant was driving slowly and there is no evidence that he was under the influence of alcohol. [ 19 ] In my view, there was sufficient evidence to convict the appellant on the charge of hit and run, only. [ 20 ] Under subsection 252(1) of the Criminal Code , the actus reus of this offense comprises the following elements: (1) that the accused had the control of a vehicle; (2) that was involved in an accident with another person; (3) that he failed to stop his vehicle, to give his name and address and, where any person has been injured or appears to require assistance, to offer assistance. [ 21 ] The mens rea is the specific intent to escape civil or criminal liability [1] .

Where the accused fails to perform one of the actions mentioned at subsection 252(1) [2] , subsection 252(2) of the Criminal Code enacts a rebuttable presumption of intent: “in the absence of evidence to the contrary, [the elements of the actus reus constitute] proof of an intent to escape civil or criminal liability” [3] . [ 22 ] In this case, the judge dismissed the appellant’s explanations as being not credible.

The evidence establishes: (1) that the accused had the control of a VTT; (2) that was involved in an accident with the victim; (3) he only stopped his vehicle fleetingly, which is tantamount to a failure to stop, and failed to give his name and address, as he fled the scene of the accident. [ 23 ] Those elements establish beyond reasonable doubt the actus reus of the hit and run offence.

[ 24 ] The appellant’s explanations, which were flatly rejected by the judge as being not credible, cannot constitute “evidence to the contrary” rebutting the presumption of intent to escape civil or criminal liability [4] . [ 25 ] Subsection 252(1.2) of the Criminal Code increases the gravity of the offence when the accused commits it while “ knowing that bodily harm has been caused to another person involved in the accident”. The Crown must therefore prove that the accused, subjectively, knew that bodily harm has been caused to the victim.

Wilful blindness may also be sufficient to establish knowledge [5] . [ 26 ] The victim testified that after the impact, he got up and ran away. The appellant testified that he felt just a “little bump”. There was no loud sound or damage to the VTT that might have suggested a brutal collision.

The appellant was driving slowly. [ 27 ] In my view, this evidence does not establish beyond a reasonable doubt that the appellant knew he had caused bodily harm to the victim or that he suspected such harm had been caused and chose not to make further inquiries. [ 28 ] On the charge of dangerous driving causing bodily harm under paragraph 249(1)

a) of the Criminal Code , the actus reus comprises the following elements: (1) the accused operated a vehicle; (2) in a manner that was objectively dangerous to the public, having regard to all the circumstances. [ 29 ] The mens rea “is determined by assessing the dangerous conduct as against the standard expected of a reasonably prudent driver.

If the dangerous conduct constitutes a “marked departure” from that norm, the offence will be made out.” [6] [ 30 ] Subsection 249(3) increases the gravity of the offence when the accused drives dangerously and causes bodily harm to the victim. [ 31 ] The judge made no analysis of the dangerous driving charge. He did not assess the risk created by the manner in which the appellant was driving his VTT having regard to all the circumstances. The complete absence of reasons for the judge’s decision justifies this Court’s intervention [7] .

The appellant has in fact a right to know “why the trial judge is left with no reasonable doubt” [8] , which he was deprived of. [ 32 ] In any event, the evidence was not sufficient to convict the appellant on the charge of dangerous driving. The appellant was driving a VTT at low speed on a wide road in Puvirnituq where there were no other cars or pedestrians, except for the victim. The appellant increased his speed just before he hit the victim with his VTT, and then fled the scene.

There was no conclusion that the appellant hit the victim intentionally. [ 33 ] Since it is not supported by the evidence, the verdict regarding the charge of dangerous driving causing bodily harm should be set aside [9] . [ 34 ] For those reasons, I would grant the appeal in part, confirm the verdict on the charge of failing to stop at the scene of an accident only and acquit the appellant of dangerous driving causing bodily harm SIMON RUEL, J.A.