r v. WILLIAM BARNETT, 2014 QCCQ 6191

R. c. Barnett 2014 QCCQ 6191 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF BEDFORD LOCALITY OF COWANSVILLE Criminal and Penal Division No. 455-01-011662-115 DATE: July 15, 2014 ______________________________________________________________________ PRESENT: THE HONOURABLE SERGE CHAMPOUX J.C.Q. ______________________________________________________________________ HER MAJESTY THE QUEEN Prosecutor v.

WILLIAM BARNETT Accused ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] William Barnett is charged with dangerous driving on May 24, 2011 in Potton and, on that occasion, to have caused bodily harm to J. G.. [ 2 ] In all, four persons testified for the Crown to having witnessed the accident, including the victim, J. G.. William Barnett also gave his version of the events. JC00K1 [ 3 ] The other witnesses did not see the accident, if what occurred that day can be considered an accident.

They were the police officers who made the physical observations, took photographs, conducted the questioning and drew the conclusions. [ 4 ] Since I believe it is unfair to require the persons who were present at the events to deconstruct what happened, image by image, and to try to have them recount what happened three years after the traumatizing events that occurred within a lapse of time of barely a few seconds, I intend first to examine the material or physical evidence, which, factually, is virtually unimpugnable and which, what is more, was not impugned. [ 5 ] To be more precise, I believe that it is of little importance that a given witness places a distance in feet or metres from a given fraction of the events.

For example, the location where the broken lines began, according to the witnesses, makes no difference to the extent that, with the photographs taken, the marks on the roadway and the location of all the vehicles after the impact, definite conclusions can be drawn. [ 6 ] Here is what I accept. [ 7 ] Shortly after 4 p.m. on May 24, 2011, William Barnett, who had consumed some alcohol, was driving south on Route 243. He was travelling faster than the vehicles in front of him. [ 8 ] The weather was good, it was about 18 degrees, and the roadway was in good condition and dry. The sun was shining.

While at the wheel of a vehicle in very bad condition from a mechanical standpoint, a fact of which he must have been aware, and without his seatbelt on, he found himself behind two vehicles that were obviously travelling more slowly than he was. [ 9 ] The markings on the roadway indicated that passing was prohibited at that location, given the two unbroken yellow lines, but also given common sense, since he was entering a zone where the speed limit was 90 km/h on an upward slope that ended in a long curve to the right. [ 10 ] Hence, it was inevitable that visibility beyond the slope he was entering and the curve in front of him was nil. [ 11 ] He said he had two choices: stay behind the two vehicles in front of him, or pass them.

He chose to pass them. When he was at about mid-way along the length of the first vehicle he intended to pass, in which two Crown witnesses were travelling, an impact occurred between his 1997 Dodge Caravan and J. G.’s GMC Canyon, which was travelling in the opposite direction. [ 12 ] The exact speed of the accused’s vehicle is not known. But examination of the data recorder connected to the Canyon’s airbag system showed that the truck was travelling at 70 km/h a second before its airbags inflated.

[ 13 ] The impact occurred about 22.4 metres after the broken lines began on the roadway for vehicles travelling on the road in a southern direction, the same direction as the accused. [ 14 ] The scientific evidence indicates that the front right corner of J. G.’s vehicle was struck. More, the photographs clearly show that. The accident reconstruction expert was able to determine, on the basis of the final position of the vehicles, that J.

G. veered slightly to the left in his lane, in a desperate attempt to avoid the accident. [ 15 ] The point of impact of the Dodge Caravan was also its right front corner. [ 16 ] After the impact, not only did the GMC Canyon, which was, however, 125 kg heavier than the Dodge Caravan, stop completely, but it also moved backward about 5 metres to the south in a circular movement clockwise. [ 17 ] The Dodge Caravan continued on in a southern direction, but went into the ditch on its left, rolled and ended up on its side about 25 metres away from the impact zone. [ 18 ] J. G. got out of his vehicle on his own.

Other people arrived, including, in particular, those in the vehicle travelling in a southern direction that William Barnett had tried to pass. Merrill Burnham, the passenger in the vehicle beside which the accident occurred, testified that he helped to extricate the accused from his vehicle, at which time the accused had difficulty staying on his feet and was speaking more or less coherently. More than one witness described behaviour that could imply that William Barnett was under the influence of alcohol.

However, he was not accused of anything in that regard and perhaps that odd behaviour was the result of the shock sustained in the accident. [ 19 ] A number of clarifications are required. [ 20 ] William Barnett testified and provided his version of the events. The Supreme Court of Canada, in R. v. W. (D.) , [1] teaches the appropriate way to analyze the evidence in these circumstances. That decision proposes a three-pronged analysis method: 1. If the accused’s version is accepted and it is exculpatory, the accused must be acquitted. 2.

Even if the accused’s version is not completely accepted, if it raises a reasonable doubt, the accused must benefit from that and be acquitted. 3. It is only if the first two stages do not make it possible to complete the analysis that it is appropriate to examine the evidence as a whole in order to determine whether it shows guilt beyond a reasonable doubt. It is only then that the accused must be found guilty. [ 21 ] Hence, it must first be determined whether the accused’s version can be believed.

However, that version is not provided in the abstract, but as part of the evidence, including the material evidence. In some cases, some facts are established definitively, for example, by admission, and any difference between these established material facts and the testimony can make it possible to immediately draw conclusions. [ 22 ] In the case at bar, I consider, in particular, that, since no observations or comments were made about the photographs submitted in terms of their admissibility, because what they show is convincing, they establish the reality of the scene after the accident.

For example, the position of the vehicles at that point and their condition were convincingly established. Furthermore, the configuration of the road, the location of the markings on the road, the road signs, and the appearance of the slope or the curve were proven by the photographs filed and used by both the prosecution and the defence. [ 23 ] In practical terms, one of William Barnett’s statements was that he was wearing his seatbelt and that it was working properly, contrary to the conclusion of the expert mechanical report. I do not believe him. [ 24 ] Both J.

G. and Merrill Burnham affirmed that they found the accused unconscious inside his van on the passenger side. [ 25 ] Merrill Burnham stated that he removed fragments of glass from the windshield, and possibly cut himself in doing so, in order to extricate the accused from the van. He explained that he got him out through the windshield. At that point, he saw that William Barnett’s face was bleeding. [ 26 ] The photographic evidence gives credence to that version of the events.

First, the windshield on the driver’s side, through which the accused would have been extricated if he had been wearing his seatbelt, was almost intact, in fact much more so than the windshield on the passenger side, where it appears that the upper left corner, viewed from the front of the vehicle, was bent and outside its frame.

That confirms witness Burnham’s version. [ 27 ] Furthermore, it can be clearly seen that the driver’s seatbelt seems intact (see, in particular, photograph SDC-10261), which is not the case for the seatbelt of the GMC Canyon (see, for example, photograph SPL-0592). [ 28 ] But there is more.

On photograph SPL-0631 or photograph SDC-10262, a large bloodstain can be clearly seen on the front passenger airbag of the Dodge Caravan, which indicates that the accused was indeed there, as the Crown witnesses contended. [ 29 ] The same is true of the accused’s contention that, at the time of the impact, he had begun to steer his vehicle to the left, toward the shoulder, in order to minimize the consequences of the impact.

The scientific evidence clearly revealed the site of the impact, and it is certain that none of the wheels of William Barnett’s vehicle was on the shoulder of the road at the time of the impact, as he stated. [ 30 ] Nor can I accept that the accused properly checked, before beginning to pass, whether there were vehicles coming from the

opposite direction, and saw there were none. [ 31 ] That contention is unbelievable, if only because of the brutal reality of the almost immediate arrival of J. G. at the wheel of his red truck. One of two things is true, since the impact occurred in the conditions of which we are aware: either the accused did not look or observe what was there, as he had the visibility to see J.

G.’s vehicle, which was already so close, or the vehicle that was quickly approaching his vehicle from the opposite direction was not visible to the accused, in which case, it is disturbing, to say the least, that he changed lanes and decided to pass. [ 32 ] The evidence is equally clear, despite differences in the versions of some witnesses, regarding the distance between the vehicles driven by Justin Whitehead and Normand Marcoux, i.e. the two vehicles travelling in the same direction as the accused.

That evidence indicates that the two vehicles were sufficiently close to one another and travelling at comparable speeds so that the accused intended to pass both of them. It goes without saying that it is more risky to pass two vehicles at once than one vehicle and that the distance and time required to do so must necessarily be greater. [ 33 ] Another element that merits clarification concerns the mechanical condition of the accused’s vehicle.

Here again, the photographs, not to mention the mechanical inspection report filed with consent , contradict the accused, who claimed that the general mechanical condition of his vehicle was good. The photographs are eloquent regarding the condition of the vehicle. The question is whether the accused was aware of it. [ 34 ] The rust was very evident and the accused must have seen it. But the matter does not stop there. The uncontradicted evidence established that the exhaust system was disconnected, the consequence of which in terms of noise was difficult to disregard.

The mechanic who inspected the vehicle, the state of which was in fact confirmed by the photographs, indicated that both the suspension (for example, a shock absorber was actually unhooked from its support) and the brakes were in a state of which the driver could not have been unaware. [ 35 ] These uncontested material elements confirm that the defendant, William Barnett, whose testimony on that subject cannot be accepted, knew that he was driving a vehicle in pitiful mechanical condition. [ 36 ] In addition, much was made of the distances between the beginning of the passing zone, the broken lines on the roadway and the site of the accident.

But that point was established by the accident reconstruction expert, regardless of the testimony of the persons who witnessed the unfortunate event. [ 37 ] I do not find it useful to focus on the testimony of the witnesses regarding the exact location of the beginning of the manoeuvre, the precise location of the vehicles at the time of the impact, and so on. What witnesses Whitehead, Burnham, Marcoux and G. observed before the impact was extremely limited, as none of them expected such an event to occur and each testified sincerely and honestly.

However, I find the measurements they gave to be of little use, given the expert’s subsequent observations. [ 38 ] What counts is the recollection of both Justin Whitehead and Merrill Burnham that they saw the front of William Barnett’s vehicle arrive mid-way along the length of their own vehicles. [ 39 ] William Barnett was much more vague on that subject. He indicated that, it seems, he veered in order to pass in the left lane and immediately found himself face to face with J.

G.’s vehicle. [ 40 ] That version has little credibility, because it is illogical. [ 41 ] If, as he said, William Barnett changed lanes and found himself immediately in front of J. G.’s truck, which was barrelling toward him, it is obvious that it would not have been too late at that point to slip back into his lane.

If, rather, he thought he should immediately veer to the left, as he said, it is highly certain that it is because he thought he could not return to the right, because Justin Whitehead’s vehicle was there. [ 42 ] So that means there was necessarily a certain delay, as the Crown’s expert witness contended, between the time he decided to pass, the time when he began the manoeuvre, the time required to arrive mid-way along the length of the first vehicle he intended to pass and the time he sustained the impact.

Given the minimum speed at which the accused may have been travelling, all these stages necessarily place the decision to pass well before the beginning of the broken-line zone on the roadway. [ 43 ] That leads to another allegation by William Barnett. He was not very specific about his speed, but he mentioned 80 to 85 km/h. It is, here again, very difficult to believe him. [ 44 ] Certain facts are not contested, the main one being that, after the impact, the heaviest vehicle, that of J.

G., stopped and was pushed back 5 metres, while William Barnett’s lighter vehicle continued to travel for a distance of 25 metres. Although the Crown’s expert was unable to arrive at a specific finding, common sense and logic nonetheless indicate that the accused was surely travelling somewhat faster than his victim’s vehicle, and very likely faster than he acknowledged. [ 45 ] So that is the factual background I consider to have been established for the purposes of determining the legal question to be decided.

ANALYSIS AND DECISION [ 46 ] Since the Supreme Court of Canada recently described the essential components of dangerous driving, it is useful to refer to the excerpts of the ruling of that Court containing such description. [ 47 ] Regarding the actus reus , or misconduct: [34] In considering whether the actus reus has been established, the question is whether the driving, viewed objectively, was

dangerous to the public in all of the circumstances. The focus of this inquiry must be on the risks created by the accused's manner of driving, not the consequences, such as an accident in which he or she was involved. As Charron J. put it, at para. 46 of Beatty , “The court must not leap to its conclusion about the manner of driving based on the consequence. There must be a meaningful inquiry into the manner of driving ” (emphasis added). A manner of driving can rightly be qualified as dangerous when it endangers the public.

It is the risk of damage or injury created by the manner of driving that is relevant, not the consequences of a subsequent accident. In conducting this inquiry into the manner of driving, it must be borne in mind that driving is an inherently dangerous activity, but one that is both legal and of social value ( Beatty , at paras. 31 and 34 ). Accidents caused by these inherent risks materializing should generally not result in criminal convictions. [35] To summarize, the focus of the analysis in relation to the actus reus of the offence is the manner of operation of the motor vehicle.

The trier of fact must not simply leap from the consequences of the driving to a conclusion about dangerousness. There must be a meaningful inquiry into the manner of driving. [2] [ 48 ] As for the mens rea , or the state of mind in which the alleged act was committed: [36] The focus of the mens rea analysis is on whether the dangerous manner of driving was the result of a marked departure from the standard of care which a reasonable person would have exercised in the same circumstances ( Beatty , at para. 48 ). It is helpful to approach the issue by asking two questions.

The first is whether, in light of all the relevant evidence, a reasonable person would have foreseen the risk and taken steps to avoid it if possible. If so, the second question is whether the accused's 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. [37] Simple carelessness, to which even the most prudent drivers may occasionally succumb, is generally not criminal.

As noted earlier, Charron J., for the majority in Beatty , put it this way: “If every departure from the civil norm is to be criminalized, regardless of the degree, we risk casting the net too widely and branding as criminals persons who are in reality not morally blameworthy” (para. 34). The Chief Justice expressed a similar view: “Even good drivers are occasionally subject to momentary lapses of attention. These may, depending on the circumstances, give rise to civil liability, or to a conviction for careless driving.

But they generally will not rise to the level of a marked departure required for a conviction for dangerous driving” (para. 71). [38] The marked departure from the standard expected of a reasonable person in the same circumstances — a modified objective standard — is the minimum fault requirement. The modified objective standard means that, while the reasonable person is placed in the accused's circumstances, evidence of the accused's personal attributes (such as age, experience and education) is irrelevant unless it goes to the accused's incapacity to appreciate or to avoid the risk (para. 40).

Of course, proof of subjective mens rea — that is, deliberately dangerous driving — would support a conviction for dangerous driving, but proof of that is not required (Charron J., at para. 47; see also McLachlin C.J., at paras. 74-75, and Fish J., at para. 86). [3] [ 49 ] The accused’s attorney insisted on the need, from that standpoint, to distinguish a civil fault from a criminal fault in order to pinpoint the behaviour truly contemplated by the offence of dangerous driving punishable under the Criminal Code . [4] [ 50 ] On that subject, the accused’s attorney insisted on saying that, first, at this stage, the consequences of the dangerous driving should not be taken into account and, second, although certain ways of operating a vehicle may be dangerous, that does not automatically mean that they incur the driver’s criminal liability. [ 51 ] For example, it is not in light of the seriousness of the accident that the dangerousness of the driving should be gauged.

That is true and Beatty [5] is a good example. [ 52 ] On that subject, he indicated that, for instance, illegal passing is also not necessarily dangerous driving. He cited in that regard Dorval [6] and the judgment of the Honourable Tôth J. in Directeur des poursuites criminelles et pénales v.

Morissette . [7] [ 53 ] Thus, it can rightly be contended that every time a driver passes against the road sign rules does not necessarily or automatically result in the obligation to conclude that the driving was dangerous within the meaning of the Criminal Code . [8] [ 54 ] But that does not mean that that fails to be a relevant factor in the analysis. Another, even more recent, Supreme Court of Canada case, R. c.

Bélanger , [9] concerned charges of dangerous driving. [ 55 ] In that case, the Supreme Court of Canada was seized of an appeal from a ruling of the Court of Appeal of Québec quashing a guilty verdict handed down by the Court of Québec. In a decision rendered from the bench, the Court of Appeal of Québec considered Frédéric Bélanger’s illegal passing manoeuvre.

The most relevant facts seemed to be as follows: [4] The appellant testified that he did not travel at more than 100 km/h, even during the pass. [5] At the place where the appellant tried to pass, there is a slope in highway 138 so that, momentarily, a driver travelling at night in his direction cannot see the headlights of oncoming vehicles in the other lane. [6] At the very moment the appellant began to pass the Ford pickup truck, Mr. Rostand was travelling on the 138 in the other direction. He was at the wheel of a Pontiac Bonneville.

When the appellant saw the Pontiac coming directly towards him in the other lane, it was already too late. He could not move back into his lane because his vehicle was parallel to the Ford pickup truck. The appellant's vehicle then collided with Mr. Rostand's Pontiac. The impact occurred on the shoulder, where both drivers had swerved to in the instant before the collision. Mr. Rostand died on impact. Mr. Bisson suffered a fractured left femur.

The appellant injured his ankle. [10] [ 56 ] The Court of Appeal wrote the following on the basis of those facts: [17] Examining all the circumstances, can we really speak of dangerous conduct that departs markedly from the norm as defined by

Charron J. in Beatty ? We do not believe so. Crossing a double line does not in itself suffice to establish penal negligence as opposed to civil negligence. Apart from her finding that the appellant knowingly and deliberately decided to pass Rémi Caron's vehicle, the judge did not consider the appellant's state of mind in her assessment of the [TRANSLATION] “modified objective test” that must be applied to determine penal negligence.

More specifically, the judge did not place a reasonable person in a situation similar to the appellant's because she decided not to consider his mistake of fact. . . . [24] The judge's assessment of the marked departure from the norm was not done by placing a reasonable person in the appellant's situation, while taking into consideration his state of mind. In fact, her assessment of the marked departure seems to be based solely on the fact that the appellant crossed the double line travelling at 100 km/h.

The judge wrote in paragraph [15] that [TRANSLATION] “[P]assing on a double solid line constitutes a marked departure from the conduct of a reasonable person” and, in paragraph [22], that [TRANSLATION] “. . . the marked departure is that of having decided to pass on a double solid line, thus in contravention of the Highway Safety Code ” . Driving in this manner may constitute a departure, but it does not necessarily constitute a marked departure as defined in Beatty . In the continuum identified in Hundal , the infraction of the Highway Safety Code mentioned by the judge does not suffice to convict the appellant.

He may have been negligent within the meaning of the Highway Safety Code , but his conduct can in no way be considered “ 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”, as provided in

section 249 of the Criminal Code . [11] [ 57 ] In a terse ruling, the Supreme Court of Canada overturned that decision and reinstated the guilty verdict rendered. It wrote the following in particular: [2] It is common ground that passing on a double line does not on its own suffice to establish the respondent's criminal liability.

All the circumstances of the case must be considered. [3] The trial judge made no fatal error in finding the respondent guilty. [4] She took the relevant factors and all the circumstances into account. [5] The Court of Appeal's intervention was therefore not warranted. [12] [ 58 ] So what are all the circumstances to be assessed? [ 59 ] Here are the most relevant, in my opinion.

Whereas he had consumed alcohol, but without it being alleged that that affected his capacity to drive, as he was not wearing a seatbelt, and he was travelling in a vehicle in pitiful mechanical condition, of which he was aware, the accused began to pass two vehicles, although the road signs prohibited him from doing so, and as he had no visibility of the traffic coming from the opposite direction.

What is more, he was probably travelling at rather high speed. [ 60 ] I find such driving to be a very marked departure from the driving that could be expected of any other driver. [ 61 ] Accordingly and for these reasons, the accused is found GUILTY of the charge as brought. __________________________________ Serge Champoux J.C.Q. Mtre. David St-Georges Counsel for the prosecutor Mtre. Nicolas Lemyre-Cossette Counsel for the accused