R. v. Martin Date:, 2010 BCPC 464

Citation: R. v. Martin Date: 20101202 2010 BCPC 0464 File No: 36198-1 Registry: Campbell River IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JONATHAN TRENT MARTIN REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE SAUNDERSON Counsel for the Crown: J. Boccabella Counsel for the Defendant: T. Bishop Place of Hearing: Campbell River , B.C. Date of Hearing: December 2, 2010 Date of Judgment:

[1] THE COURT: The defendant is charged with dangerous driving causing bodily harm to Dayle Wilson in Campbell River atabout 9:00 a.m. on June 2, 2009. The accident happened in Discovery Harbour Mall just north of the intersection of Dogwood Street andIsland Highway. Mr. Martin was driving his 1988 Ford Mustang south in the mall when he lost control of the vehicle, as a result ofwhich it mounted the curb of the sidewalk to his right and struck and injured Ms. Wilson, who was pushing her daughter in a stroller.

The little girl was thrown from the stroller, fortunately suffering only bumps and bruises. [2] Witnesses near the scene of the accident testified about what they saw and heard. They were not unanimous in their versionsof the event, which is to be expected. Based on their evidence, I am satisfied that the Mustang spun its tires briefly, that it fishtailed afew times on an area of pavement that was wet from nearby sprinklers, that it went into a clockwise rotation and rode up on the sidewalk,where it collided with Ms.

Wilson. [3] Two accident reconstruction reports were produced in evidence, and their authors testified. The actual speed of the Mustangcould not be determined, but one of the experts opined that it was travelling in excess of what he described as the "typical speed" of 20 to30 kilometres per hour on that part of the road in the mall leading to the intersection. I do not recall any evidence of there being a postedspeed limit governing traffic at that point. [4] The police expert concluded that the driver of the Mustang, Mr. Martin, was the sole cause of the accident.

I agree, forreasons which will become apparent in due course. The expert called by the defence, while not disagreeing with the Crown's expert,concluded that three factors could have contributed to a loss of traction at the rear (driving) wheels of the Mustang: driver inexperience,wet patches on the road, and what he described as the "torque loading on the rear axle." That is consistent with the evidence, and Iaccept those conclusions. [5] Mr. Martin testified. He said that he and his father bought the Mustang in late 2008 and rebuilt it, basically from scratch.

They made it driveable by May 2009, about three weeks before the accident. The morning of the accident was only the third or fourthtime he had driven it. It had a standard transmission. Prior to driving the Mustang, he had not driven a vehicle equipped with a standardtransmission since 2002. [6] Shortly before the accident at an intersection within the mall, he brought his car to a stop at a stop sign. The car stalled. Herestarted the engine, depressed the accelerator twice, revved it a couple of times, and drove forward. There was an unintended splitsecond screech of the tires at that point.

He continued south toward the intersection of Dogwood Street and Island Highway,encountering wet patches on what had been a completely dry road surface. Intending to drive through the intersection, and having agreen light for southbound traffic, he shifted into third gear, accelerating slightly. His rear tires spun without his intending that they doso. The car fishtailed, then spun, went up onto the sidewalk and struck Ms. Wilson. The entire incident, when the vehicle was out ofcontrol, lasted a few seconds. [7] In cross-examination, Mr.

Martin said that when previously driving the Mustang, it "stalled at red lights all the time." I amsatisfied that Mr. Martin told the court what happened as accurately as he could.

I have no sense that he was trying to deceive the courtin any way. [8] I take it as common knowledge among those who drive cars equipped with standard transmissions that the operation of theaccelerator and clutch must be properly synchronized to set the vehicle in motion smoothly and to shift gears smoothly, and that thefailure to do so may result in the car stalling or the drive wheels spinning, among other things, depending on how the synchronization ismismanaged. Here I am satisfied that Mr.

Martin's repeated experience of stalling the Mustang at red lights was caused by his failure todisengage the clutch soon enough as he was bringing the car to a stop. As well, his experience of causing the tires to screech briefly ondry pavement when leaving the stop sign on the morning in question resulted from a lack of appropriate coordination betweenaccelerator and clutch. [9] The law relating to dangerous driving is fulsomely set out by Madam Justice Charron for the majority of the Supreme Courtof Canada in R. v. Beatty, 2008 SCC 5 , [2008] 1 S.C.R. 49.

It must be established that the driving reflects a marked departurefrom the standard of care that a reasonable person would observe in the circumstances. That has been established here. At paragraph43(

a) she wrote, under the caption "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 ofthe 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 beat that place".

And in paragraph 43(b), these words appear: The trier of fact must also be satisfied beyond a reasonable doubt that the accused's objectively dangerous conduct was accompanied bythe required mens rea. In making the objective assessment, the trier of fact should be satisfied on the basis of all the evidence, includingevidence about the accused's actual state of mind, if any, that the conduct amounted to a marked departure from the standard of care thata reasonable person would observe in the accused's circumstances.

Moreover, if an explanation is offered by the accused, then in order toconvict, the trier of fact must be satisfied that a reasonable person in similar circumstances ought to have been aware of the risk and ofthe danger involved in the conduct manifested by the accused. [10] Unquestionably, the driving in this case was dangerous, viewed objectively. In coming to that conclusion, I do not take intoaccount the result of that driving, that is, the injuries. At law, the court must not do so either to arrive at or bolster its finding.

As to themental element, I hasten to point out that there is no suggestion whatsoever that Mr. Martin intended to drive dangerously. [11] The difficulty faced by Mr. Martin in this case is that he was aware of his inability to be in complete control of his Mustangbefore the accident occurred. He had stalled it many times. He had spun its wheels, if ever so briefly, when leaving a stop sign on dry

pavement. He saw wet areas of the road as he approached them. He shifted gears from second to third when on the wet area, giving it too much gas, with the predictable result of the drive wheels spinning and the likelihood of loss of control. He was on notice, in other words. He had neither the competence nor the experience to properly and safely drive that powerful vehicle. In plain English, the car was too much for him, a fact which he ought to have known, if he did not. [ 12 ] In that regard, the Supreme Court of Canada stated in R. v.

Creighton , decided on September 9, 1993: The criminal law, as noted, is concerned with setting minimum standards of behaviour in defined circumstances. If this goal is to be achieved, the minimum cannot be lowered because of the frailties or inexperience of the accused, short of incapacity. [ 13 ] I find Mr. Martin guilty of the charge. (REASONS CONCLUDED)