R. v. Ward Date:, 2017 BCPC 38

Citation: R. v. Ward Date: 20170127 2017 BCPC 38 File No: 37737-1 Registry: Duncan IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. SHANNON RAE WARD ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE J.P. MacCARTHY Counsel for the Crown: Scott Van Alstine, Q.C. Counsel for the Defendant: Richard S. Margetts, Q.C. Andrei Whitaker Place of Hearing: Duncan , B.C. Dates of Hearing: November 21, 24, 25, 2016

Date of Judgment: January 27, 2017 Introduction [1] THE COURT: Shannon Rae Ward faces a charge of driving without due care and attention, contrary to s. 144(1)(

a) of theMotor Vehicle Act, RSBC 1996.

These charges arise out of a collision occurring in the late afternoon of July 7, 2014, on VancouverIsland, between a sports utility motor vehicle owned and being driven by her and a motorcycle being ridden by a single rider. [2] It is admitted by the defence that Shannon Rae Ward (the "Accused") was the driver of that sports utility vehicle, being a white2008 Hyundai Santa Fe (the "SUV"). [3] The site of the collision was at the intersection of the south end of Shawnigan Lake Road and the Trans-Canada Highway, nearShawnigan Lake, British Columbia. [4] Tragically this collision resulted in the death of the motorcyclist, Gerald Loiselle (the "Motorcyclist").

The identity of theMotorcyclist is admitted. It is further admitted by defence that the Motorcyclist succumbed to the fatal injuries that he sustained in thecollision. That occurred at the scene of the collision. [5] The task of this court is to determine whether or not Crown has sufficiently proven the necessary elements of this offence inorder to obtain a conviction. Applicable Law with Respect to Driving Without Due Care and Attention Applicable Statutory Provisions of the Motor Vehicle Act [6] Section 144(1)(

a) of the Motor Vehicle Act reads as follows: 144(1) A person must not drive a motor vehicle on a highway (

a) without due care and attention [7] In the decision of R. v. Tubbs (infra), the Honourable Judge Skilnick of this court provides an excellent and concise

summaryof the law relating to driving without due care and attention. [6] The meaning of the phrase “due care and attention” has been considered in a number of court decisions. In R. v. Weedon, [1987]BCJ 2611 (B.C. Co. Ct.), Hutchison Co. Ct. J. (as he then was) describes this offence as follows: The actus reus of the offence is the improper driving. What is improper, and therefore objectively evidences an absence of due care andattention depends on all the circumstances. The improper driving may be manifested in several ways.

The Crown must show a mannerof driving which in all the surrounding circumstances departs from the accustomed sober behaviour of a reasonable man. The lack ofdue care and attention, the absence of thought can be inferred from the objective indicator of the manner of driving. [7] The learned judge went on to distinguish between inattentiveness and inadvertence: The appellant says that he was highly attentive and that his attentiveness amounts to the exercise of due care and attention. He submitsthat the Crown has not shown inadvertence on his part and consequently the offence has not been established.

Inattentiveness and inadvertence are not synonymous. The test for inadvertence is objective. The appellant may have been fullyattentive to the mechanics of driving yet still have failed to direct his mind to matters to which it ought to have been directed. Theappellant ought to have directed his mind to the traffic conditions, including what the trial judge characterized as "packs" of cars. Heought to have considered that other drivers may be less proficient than he, and the resulting possible consequences of making unsignalledlane changes and tailgating.

The manner of driving and the circumstances have been shown by the Crown. If this manner departed from the sober behaviour of areasonably prudent driver the absence of due care and attention has been made out. His professed superior skill is not a factor. It is notcalled for by the Act, nor does it disprove the improper manner of driving. [8] In R. v. Jacobsen, (BC CA), [1965] 1 C.C.C. 99 (B.C.C.A.) the British Columbia Court of Appeal held that theoffence of driving without due care and attention is an absolute prohibition offence and that all that the Crown is required to prove isinadvertent negligence.

The court made the distinction between a criminal offence such as criminal negligence, and the offence ofdriving without due care and attention.

Bird J.A. wrote: While there may be degrees in relation to the crime under the Criminal Code, under the Motor Vehicle Act, it is the inadvertence itselfwhich is the offence and the learned Magistrate, burdened sufficiently as he is with the duty of determining what is "due care andattention" in the circumstances of the particular case, is not, in my opinion, required to go further. [9] Once inadvertent negligence has been proven, the onus shifts to an Accused to lead evidence which raises a reasonable doubt. R.v. Kearney, [1993] B.C.J. No. 575 (B.C.C.A.); R. v.

Funk, an unreported 2005 decision of Neilson J. of the B.C. Supreme Court inVancouver Registry file 23026. This does not mean that an Accused is required to prove his innocence, but that, in the words ofHollinrake J.A. in Kearney: The Crown having led sufficient evidence to prove its case, the evidential burden then fell on the appellant to lead evidence that couldgive rise to reasonable doubt in the mind of the trier of fact.

[10] So to summarize the applicable law: (

a) To drive without due care and attention, within the meaning of section 149 (1)(

a) of the Motor Vehicle Act, means improperdriving, which is in turn defined as “a manner of driving which in all the surrounding circumstances departs from the accustomed soberbehaviour of a reasonable man.” Some of the cases refer to this improper driving as “inadvertent negligence.” (

b) The lack of due care and attention can be inferred from the objective indicators of the manner of driving. (

c) A driver may [be] fully attentive to the mechanics of driving yet still fail to direct his or her mind to matters to which it ought tohave been directed and thereby drive without due care and attention. (

d) To drive with due care and attention means that a driver ought to consider that other drivers may be less proficient as drivers thanhe or she is. (

e) The offence of driving without due care and attention is an absolute prohibition offence. (The B.C. Court of Appeal in Jacobsenrefers to it as such, while R. v. Funk describes it as a strict liability offence.) (

f) Once the Crown has led sufficient evidence to prove the offence, the burden then falls to the Accused to lead evidence which maygive rise to a reasonable doubt. [8] As further noted by the Honourable Judge de Walle in R. v. Goldade (infra): [18] The cases also reveal that s. 144 of the Motor Vehicle Act does not demand that drivers in British Columbia satisfy a standard ofperfection. It does require, however, that they drive in a manner that is objectively reasonable, having regard to all the circumstances. R.v. Chisholm, [2008] B.C.J. No. 1414. [9] In R. v.

Kowalewich (infra), the Honourable Judge Quantz provides further guidance on what standard is to be applied indetermining whether the offence has been established. [4] The law with regard to the essential elements of this offence is not complicated. It is summarized briefly by Madam JusticeNeilson in her decision, R. v. Funk, (2005), Vancouver Registry 23026, B.C.S.C. She states at paragraphs 6 and 7 with reference to otherauthorities: Driving without due care and attention is a strict liability offence.

The parties agree that the objective standard of the reasonable man isthe basis for determining whether the offence has been established. The Crown must show a manner of driving which, in all thecircumstances, departs from the accustomed sober behaviour of a reasonable man… It is then open to the Accused to avoid liability by proving he took all reasonable care. This again is judged objectively by what areasonable man would have done in the circumstances.

If the Accused reasonably believed in mistaken facts, which if true would havemade the act innocent or if he took all reasonable steps to avoid the event, he will not be convicted. [10] I am mindful that the issue before this court and its task is not to decide fault for the collision between the SUV andMotorcycle, but to determine whether the evidence establishes beyond a reasonable doubt that the Accused has committed the offencewith which she has been charged. Presumption of innocence and reasonable doubt [11] The obligation is upon Crown to prove all elements of the offence beyond a reasonable doubt.

If that occurs, then and onlythen, can the court convict the accused person. Where reasonable ground exists on any element of the offence charged, the accused mustbe acquitted. [12] Reasonable doubt is not an imaginary or frivolous doubt, nor is it based upon sympathy or prejudice. Reasonable doubt is adoubt based on reason and common sense, which must logically be derived from the evidence or absence of evidence. The Crown mustprove more than probable guilt. However, reasonable doubt does not involve proof to an absolute certainty, since that would be animpossibly high standard.

The standard of reasonable doubt falls much closer to absolute certainty than to proof on a balance ofprobabilities. (R. v. Lifchus, (SCC), [1997] CanLII 319 (SCC), 1997 3SCR 320, and C.R. v. Starr, 2000 SCC 40, [2000] 2 SCR 144).

The W.(D.) formulation [13] I must instruct myself that in the trial of criminal matters and matters of this nature it is not a question of which witnesses'evidence or version of the events I believe, but rather whether on the totality of the evidence Crown has proven each essential element ofeach offence beyond a reasonable doubt. [14] Where there is evidence of an accused that raises a defence, as in the case in this matter, then I must further instruct myself andI must apply to this evidence the well-known process of analysis set out in R. v.

W.(D.) (SCC), [1991] 1 SCR 742, foundat paragraph 28: First, if [I] believe the evidence of the accused, obviously [I] must acquit. Second, if [I] do not believe the testimony of the accused but [I] am left in reasonable doubt by it, [I] must acquit. Third, even if [I] am not left in doubt by the evidence of the accused, I must ask myself whether on the basis of the evidence which [I] doaccept, [I] am convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

[15] The supplemental test enunciated by the British Columbia Court of Appeal in R. v. C.W.H.

(1991) BCJ No. 2735, as a fourthstep to the W.(D.) analysis; namely, if after consideration of all the evidence the court is unable to decide whom to believe with respect tothe central issue in a prosecution, then the Accused must be acquitted. Josiah Wood, J.A. (as he then was) suggests that logically thisought to be second in order in the W.(D.) analysis. [16] It is also important to instruct myself that the W.(D.) model is not intended to be a precise formulation to be used at all times orto achieve a level of sanctity or immutable perfection.

Once again, I must instruct myself on the main point that the burden never shiftsfrom the Crown to prove every element of the offence beyond a reasonable doubt. The lack of credibility on the part of the accused doesnot equate to proof of his or her guilt beyond a reasonable doubt. (See R. v. S.(J.H.), 2008 SCC 30 , [2008] 2 SCR 152) [17] In this case, I have heard evidence that is conflicting on material matters. Therefore I must assess the credibility of thewitnesses who provided this conflicting evidence. In doing so, I must weigh all of the evidence.

In so weighing the evidence, I mayreject or accept some or all of the witness's testimony after having taken into account a multitude of factors which include, but are notlimited to, appearance or demeanour, ability to perceive, ability to recall, motivation, probability or plausibility, and internal or externalconsistency. [18] I must also direct myself that even honest witnesses may make mistakes in their evidence, or have errors of recollection, or maypresent upon the stand in a nervous or uncertain manner for reasons unrelated to the truthfulness of their testimony. [19] It is an error in cases of contradictory evidence to simply weigh the evidence of one witness against the evidence of another. (See R. v.

Jackson, 2007 BCSC 636; see also R. v. Mann, 2010 AJ No. 1094) Assessing credibility and reliability of witnesses [20] As I have noted, here I have heard evidence that is conflicting on material matters regarding the alleged offence, and I mustassess the credibility and the reliability of those witnesses who have provided this conflicting evidence. [21] In doing so, the testimony of each witness can be considered from three perspectives: (

a) their truthfulness: whether they are trying to tell the truth or intentionally lying when testifying; (

b) their objectivity: whether they have been influenced by assumptions or emotions which may affect the accuracy of theirperceptions; and (

c) the accuracy of their observations: their abilities to observe, remember and communicate accurately. [22] In the recent case of R. v. Cuhna, 2015 BCPC 60 at paragraphs 5 and 6, the Honourable Judge Merrick provides a useful reviewof the factors to be considered when assessing the testimony of a witness from these three perspectives: A.

Truthfulness Relevant factors for truthfulness include previous inconsistent statements or occasions on which the witness has been untruthful,inconsistencies in testimony during direct examination and cross-examination; reliable evidence that conflicts with the testimony of thewitness and the attitude and the demeanour of the witness. However, when considering demeanour, it is important to consider all thepossible explanations for the witness's attitude, and to be sensitive to individual and cultural factors that may affect demeanour. B.

Objectivity When assessing a witness's objectivity, it is important to bear in mind that such objectivity may be influenced by the witness'sexpectations, the assumptions of unproven facts, or by subsequent events. C. Accuracy Factors that may affect the accuracy of a witness's testimony include the attentiveness of a witness during the period of observation andthe circumstances of the witness's observations. The reasons for recalling the event, and the length of time between witnessing an eventand providing testimony about it may affect the accuracy of the witness's testimony and hence its reliability.

Some witnesses may havedifficulty communicating their evidence clearly, due to factors such as nervousness. The Evidence Undisputed Evidence [23] It is undisputed from the evidence of numerous witnesses that the collision occurred on July 7, 2014, at approximately 4:12 p.m.at the intersection of the south end of Shawnigan Lake Road and the Trans-Canada Highway (the "Intersection"). It was a warm, sunnysummer day. The roads were dry.

The temperature was in a range of between 25 to 28 degrees Celsius. [24] The Intersection is located in an area that forms part of the Malahat Drive, being a portion of the Trans-Canada Highwaylocated north of Victoria, British Columbia. At this Intersection, Shawnigan Lake Road is commonly referred to as "South ShawniganLake Road". [25] As it approaches the Intersection, Shawnigan Lake Road consists of two lanes divided by double solid painted yellow lines. Itaccommodates eastbound and westbound traffic through a rural residential area.

The speed is governed by regulatory 50 km per hoursigns. [26] The Trans-Canada Highway is an arterial provincial highway which at the Intersection runs through a primarily rural area. It

carries traffic to and from Victoria in the south and runs generally in a south to north direction over the Malahat Drive, through the Cowichan Valley, and continuing towards the central and northern parts of Vancouver Island. [ 27 ] The Trans-Canada Highway was both prior to and at the time of the collision the subject of an upgrading and safety project being undertaken by the British Columbia Ministry of Transportation and Infrastructure.

The project was commonly described as the Malahat-Shawnigan Lake Improvement Project, and more formally called the Highway 1 Malahat Safety Improvement Shawnigan Lake Road to Malahat Summer Weather Station. The Malahat Summit lies north of the Intersection. [ 28 ] At the Intersection, the Trans-Canada Highway consists of a three lane roadway with two northbound lanes and one southbound lane. It is divided by a concrete median.

There is a gradual counter-clockwise curve for the southbound traffic. [ 29 ] Two traffic islands are located at the Intersection, with one on either side of Shawnigan Lake Road and both on the west side of the Trans-Canada Highway and lie immediately adjacent to the west side of the Trans-Canada Highway. [ 30 ] At the Intersection eastbound traffic travelling from the west on Shawnigan Lake Road is able to proceed southbound towards Victoria by way of a merge lane onto the Trans-Canada Highway.

That southbound merge lane is located to the southwesterly side of the traffic island lying south of the Shawnigan Lake Road (the "South Traffic Island"). A lamppost is situated on the South Traffic Island which provides illumination of the Intersection when there is darkness. [ 31 ] At the Intersection, the Trans-Canada Highway southbound traffic can exit and turn westward onto Shawnigan Lake Road by means of a lengthy deceleration exit lane that runs immediately adjacent to the southbound through lane of the Trans-Canada Highway.

That exit lane also runs to the west side of the traffic island located on the north side of Shawnigan Lake Road (the "North Traffic island"). [ 32 ] A lamppost is located on the North Traffic Island and it is positioned on the northwest corner of the Intersection adjacent to the west side of the Trans-Canada Highway (the "Northwest Corner Lamppost").

A streetlamp is positioned at the top of it, and it provides illumination for traffic travelling through the Intersection when there is darkness and an attached arm supports the traffic light box containing a flashing amber traffic light for the Trans-Canada Highway traffic approaching the Intersection and a flashing red traffic light for the Shawnigan Lake Road traffic approaching the Intersection. [ 33 ] Vehicle traffic intending on travelling northbound on the Trans-Canada Highway from Shawnigan Lake Road is regulated by the flashing red light and a stop sign at the Intersection.

The stop sign is located on the South Traffic Island located immediately adjacent and south of the Shawnigan Lake Road. The stop sign itself, positioned on a post, is therefore to the east and south of the stop line painted on the surface of the Shawnigan Lake Road and thus on the west side of the Trans-Canada Highway. [ 34 ] In part, the highway median is broken to allow for the Trans-Canada Highway northbound traffic to turn left and then to travel westbound on Shawnigan Lake Road.

The westbound turning traffic has the benefit of a dedicated left-hand turn lane adjacent to the east side of the south highway median.

As noted above, there is a flashing amber light at the Intersection that is visible to the traffic travelling on the Trans-Canada Highway. [ 35 ] Other than the flashing amber and red lights, there is no traffic light in place to regulate the turning traffic or the through traffic on either the Trans-Canada Highway or Shawnigan Lake Road, or for that matter, any other traffic at the Intersection. [ 36 ] In order for vehicles to gain northbound access to the Trans-Canada Highway from Shawnigan Lake Road those vehicles too must pass through the break in the highway median.

The intended northbound vehicular traffic must first proceed in an easterly direction between the North and South Traffic Islands, passing the stop sign, next crossing over the southbound lane of the Trans-Canada Highway, and then as it proceeds through the break in the highway median, pass in front of the Trans-Canada Highway's westbound turning lane, and thereafter complete a left turn and merge into one of the two northbound lanes of traffic on the Trans-Canada Highway. [ 37 ] The Trans-Canada Highway and South Shawnigan Lake Roads are described by Constable Amanda Curwin, Crown's collision analyst, then with the South Vancouver Island Traffic Service, in her Technical Collision Analyst Report (referred to below), as "being constructed of well-travelled, traffic polished asphalt in good repair." [ 38 ] In addition, the Trans-Canada Highway at the Intersection location is described in the same report in the following terms: The road has a grade of 6.9 % in the southbound direction and a super elevation of 3.2%.

The roadway is bordered by dense forest. [ 39 ] According to PC Curwin, the coefficient of friction measurement of the road surface at 0.69 (ratio weight over force) was apparently pretty average. The super elevation measurement of the outside curve was also fairly typical. [ 40 ] Immediately prior to the collision, the Motorcyclist was travelling southbound on the Trans-Canada Highway. [ 41 ] He was riding a yellow and black 2009 BMW F 800GS Motorcycle (the "Motorcycle"). The Motorcycle was a mid-sized motorcycle.

It was mostly black in colour but with yellow markings on the sides and on the curved front portion mounted in front of the handlebars, topped off with a black nose tip. [ 42 ] The Motorcycle was equipped with a dual headlight consisting of two separate single filament halogen bulbs, one designated for low beam and one for high beam. There was also a small parking light within the light assembly beneath the low beam headlamp. [ 43 ] The Motorcyclist was wearing a black BMW motorcycle jacket.

He was also wearing a black helmet with a full face mask, full faced dark visor face mask, motorcycle boots, dark jeans, and motorcycle gloves. [ 44 ] Immediately preceding the collision the Accused had driven the SUV in a southeast direction along Shawnigan Lake Road from the residence of her friend Sherry Murray, and arrived at the Trans-Canada Highway Intersection regulated by the stop sign. She sought

to turn left and to then travel northbound on the Trans-Canada Highway towards Parksville, located north of Nanaimo. [ 45 ] In the passenger seat of the SUV was an 11 year old friend of the Accused's daughter, namely Hannah Rankin. No other passengers were in the SUV. [ 46 ] In the course of the SUV travelling into the Intersection, it encroached on the path of the Motorcycle. The Motorcycle and the SUV collided. Extensive damage to the Motorcycle was sustained on the front end at the 2 o'clock position.

According to the Technical Collision Analyst Report that as a result of the collision the Motorcycle was demolished and specifically "the front light assembly, windshield, and instrument panel became detached" from the Motorcycle. The handlebars and the forks were "turned towards the right in an exaggerated angle and the front tire was bent/warped due to the impact". [ 47 ] The SUV was equipped with an automatic transmission. It was also equipped with a two headlight system consisting of dual filament halogen bulbs.

Again according to the Technical Collision Analyst Report, the SUV sustained significant frontend damage on the left side and specifically it "sustained the majority of its damage at the 11 o'clock position, including the light assembly". [ 48 ] The SUV's front bumper had become detached and was noted to be lodged under the SUV by Constable Curwin when she arrived on the scene. [ 49 ] The Motorcycle's final resting position after the collision was also observed to be partially underneath the SUV at its final resting place following the collision. [ 50 ] The collision caused the Motorcyclist to be thrown from the Motorcycle in a southeast direction, coming to rest on the road surface of the inside northbound lane of the Trans-Canada Highway.

The actual location where the Motorcyclist first landed on the roadway before rolling or sliding to a stop could not be identified by Constable Curwin, but the Motorcycle's final resting location on the roadway was calculated to be a distance of 15.09 metres from what is described in the Technical Collision Analyst Report as being "from the point of maximum engagement".

The Technical Collision Analyst Report states in a footnote that: "Maximum Engagement- Maximum Intrusion of one object into another (forces of the collision are at a maximum in this stage)". [ 51 ] A pedestrian approaching the Intersection and a number of passing and turning motorists observed the thrown Motorcyclist and left their vehicles to attend to and to comfort him. Emergency 911 calls were made resulting in the attendance of the local fire department, an ambulance and the RCMP.

There was a delay between the time of the collision and the arrival of the official first responders, likely in the range of about 10 minutes. [ 52 ] The SUV's final resting location after the collision left it with its rear end in an area located past the east side of the southbound lane of the Trans-Canada Highway. The mid-point of the SUV was located in the centre of the Intersection, but situated to the south of the north highway median and to the west of the northbound lane. That median divides the southbound lane and the inside northbound lane of the Trans-Canada Highway at the Intersection.

The front of the SUV was protruding into the northbound lane of the Trans- Canada Highway. [ 53 ] RCMP Constable Raelyn Hart was the first RCMP member to arrive at the Intersection following the collision. The report of the collision was received by the Shawnigan Lake detachment of the RCMP around 4:12 p.m. She arrived on the scene at approximately 4:20 to 4:25 p.m.

A B.C. ambulance and the local fire department had already arrived on the scene and were attending to the Motorcyclist. [ 54 ] The Accused and the passenger Hannah Rankin were out of the SUV standing on the south traffic island. [ 55 ] The Accused identified herself as the driver of the SUV and produced a photo driver's licence. Constable Raelyn Hart took a recorded audio statement from the Accused in the police cruiser at the scene of the collision at 4:39 p.m., about the Accused's version of events surrounding the collision (the "Accused's Police Statement").

It was transcribed and both the recorded audio statement and the transcript were admitted into evidence. [ 56 ] Constable Curwin arrived at the scene of the collision at approximately 5:40 p.m., nearly an hour and a half after the collision had occurred. She commenced her technical collision investigation at that time. At the time of her arrival, the temperature was approximately 28 degrees Celsius and it was clear and sunny with unlimited visibility. [ 57 ] Constable Curwin's on-site technical collision investigation included observations of the two vehicles.

The Motorcycle and the SUV were seized by the RCMP and were taken to a storage facility in Cobble Hill, some distance north of the Intersection, for further examination which occurred the following day. A mechanical investigation was also undertaken.

No mechanical defects pre-dating the collision were detected in either the SUV or the Motorcycle. [ 58 ] As part of the initial technical collision investigation, Constable Curwin conducted an examination of the travel lanes of the Trans-Canada Highway and South Shawnigan Lake Road searching for physical evidence, starting north of the collision scene and walking south, following the path of travel for the Motorcycle.

She then continued her search following the travel path of the SUV, moving from west to east. [ 59 ] Constable Curwin also made a further visit to the Intersection at a later date to conduct time and distance testing using independent subject vehicles. The Crown's Case [ 60 ] While there were a substantial number of individuals at the scene of the collision who observed the results of the collision, there is a limited amount of direct evidence about the actual collision between the Motorcycle and the SUV or what occurred immediately prior to the collision.

[ 61 ] Accordingly Crown has significantly relied upon the Accused's Police Statement, the Technical Collision Analyst Report, the evidence of Constable Curwin, and the expert opinion of Constable Richard Burdet regarding motorcycles. [ 62 ] Crown called the following individuals to testify as part of the Crown's case: 1) Constable Raelyn Hart 2) Donald Knight 3) Sherry Murray 4) James Wilson 5) Nancy Parker 6) Constable Amanda Curwin 7) Gerald Kiefert 8) Constable Richard Burdet [ 63 ] I have set out a

summary of the additional important relevant evidence of each of these witnesses that I accept as factually correct. I have noted where that evidence is materially in conflict with other evidence or where I may not accept it as being factually correct. Evidence of Constable Raelyn Hart [ 64 ] The Accused's Police Statement was entered into evidence by Constable Hart. [ 65 ] At the time she spoke to the Accused, Constable Hart had not placed the Accused under arrest nor was she detained. She was free to leave. Constable Hart had no basis to lay charges at that time.

She sought to obtain the Accused's version of the events. She had no dealings with the child passenger Hannah Rankin. [ 66 ] At the time that Constable Hart took the Accused's Police Statement, she described the Accused as being responsive to the questions, very straight-faced, unemotional and detached. Constable Hart drew nothing from the Accused's demeanour.

She agreed that the Accused may have been in shock at the time that she provided the Accused's Police Statement. [ 67 ] A transcript of the Accused's Police Statement was entered as an exhibit in the trial. [ 68 ] In response to Constable Hart's reference to the accident and her question to the Accused framed as, "Can you please tell which appear in the transcript from lines 7 to 70?” WARD: Yeah okay. I came to a complete stop at Shawnigan Lake and I was gonna turn left. I was waiting for the traffic on the left to clear. The traffic on the right to clear.

The traffic on the left looked like it was gonna clear so I was checking right traffic. Those cars went by so I thought okay those other cars are way back there, I got time. I'll pull in right behind the last of the cars that were coming before the space and so I went to go out and next thing I know the guys right beside me. HART: Okay and how long had you been stopped at the stop sign for? WARD: Not very long. Uhm, when I first got to the stop sign it was clear on both ends. But I wasn't willing to sort of just pull through the stop sign.

Uhm, and so I waited and there was gonna be, I didn't wait long, before there was gonna be space on both ends. HART: Okay so how long do you think you were stopped for in a matter of seconds? WARD: Not a full minute. HART: Not a full minute? Okay. WARD: No. But I was at a dead stop. HART: Okay. So you looked ah to the north and uhm you thought … it was going to be coming clear? WARD: Mhm. Yeah, I could see a space coming available. HART: Okay. Uhm and you, what did you see when you looked northbound?

WARD: I saw the last of the traffic going past me so I knew it was, it was clear for a second or two and I was waiting for the right place to clear and as the past car , might have been red, when you asked me the colour. Uhm, I pulled out and I was gonna swing right in sort of right behind buddy and just keep going. And I had not seen that cyclist at all. I wasn't trying to out chase him or anything. I never saw him. HART: Okay. So at what point did you see him? WARD: When he was at the uhm, almost I guess almost at the fender of my car.

Like not at my driver's side but between the front and the driver's side, whatever that panel piece is. Okay my wheel. My left wheel. That's when I saw him.

HART: Okay. WARD: For the first time. HART: And where were you when you saw him? Like where were you at that point in the intersection? WARD: Uhm, not much further than we are here. HART: Okay. Cause your vehicles right in the middle of the road there. WARD: Yeah I, cause I tried to stop. I tried to come to a complete stop and I don't know what he was doing but we ended up meeting and he ended up where I ended up. HART: Okay so what part of your vehicle did he hit? WARD: The front end. HART: Okay the very front of it? WARD: Mhm. HART: Okay. And what happened after you guys collided?

WARD: People stopped and started to help that guy and I, I tried to put my car in park but it wouldn't so I stayed in my vehicle. It was still running. So we had air condition so we weren't overheating. HART: It wouldn't go into park? WARD: Nope. HART: Okay. WARD: And I put my emergency brake on but I wasn't willing to leave it. And then the firemen put those things on the wheels and then they said I could get out. And then they asked me to turn the vehicle off and I couldn't even do that. The keys still in the ignition. HART: Okay uhm so after he collided with the front of your vehicle what happened?

WARD: I'm not quite sure how he got from the front of my vehicle. Cause the front of my vehicle does it have his bike, or pieces of it and he ended up over there. I have no idea how that happened. I didn't see it. I was trying to stop and my head hit the, the door and then I finally came to a complete stop. I tried to put it into park and it wouldn't. And then I asked Hannah how she was. [ 69 ] In the Accused's Police Statement, she went on to indicate that she was unable to rely on her emergency brake and she did not get out of the SUV because of a concern that the SUV would roll.

The Accused observed that a number of people were attending to the Motorcyclist. As I understand it, the attending firemen blocked the wheels to the SUV which permitted her and Hannah Rankin to exit the vehicle. [ 70 ] Constable Hart continued the questioning of the Accused at line 108 to line 142 of the transcript and the following answers were provided: HART: Okay. Alright. Uhm, and have you had anything to drink today? WARD: No. HART: Okay. WARD: I was in a, I was in a seminar this morning and I got out early so I could maybe try to get up to Parksville a bit early.

And I stopped here to get my friend cause she didn't know where she was going so she was gonna follow me up the Island. HART: Okay. Alright. Uhm, and ah are you on any medication or anything? Do you wear glasses? WARD: I do wear glasses. HART: Okay. WARD: Uhm and actually it's the wrong prescription cause I haven't got my new prescription filled. HART: Okay. WARD: Uhm, I'm on anti-depressants and birth control. HART: Okay. And have you taken medication today? WARD: Mhm. I take it every morning. HART: Okay. Uhm, do you have a re … ah eye glass restriction on your licence?

WARD: No. HART: No. WARD: My eyes aren't that bad. HART: Okay. WARD: I've just got the old people glass needing and I … HART: Okay. WARD: … just haven't done it yet. HART: Okay, alright. Uhm, anything else you can think of to tell me Shannon? WARD: Fact that I didn't see him. That's it, that's what … HART: Okay. How close was he to the vehicle … WARD: When I saw him … HART: … the last vehicle yeah. WARD: … oh how, how close was he to the last vehicle that left? HART: … yup. WARD: I have no idea. Because when he le… when the last one left I looked back, there was nobody that I could see.

And then the next thing I know he's right there. [ 71 ] In my deliberations, I again listened to the audio tape of the Accused's Police Statement that was played in court and entered as an exhibit and compared it to the transcript of the Accused's Police Statement. I note that there is a slight discrepancy in what I heard and what has been transcribed in lines 28 to 30. In the transcript, at line 30, there is a reference to " past car ". In fact, the Accused said, "last car". Evidence of Donald Knight [ 72 ] Immediately prior to the collision, Mr.

Knight was driving southbound in his motor vehicle on the Trans-Canada Highway which he had done on a number of occasions. [ 73 ] He described the southbound traffic as being normal but also as being backed up at the top of the Malahat Summit. He recounted that the southbound traffic was merging near the Intersection.

He stated that the northbound traffic, to his recollection, was "moderate" and did not appear to be backed up. [ 74 ] As he was proceeding and looking southbound on the Trans-Canada Highway, his attention was drawn to pieces of white fibreglass skipping over the hoods of cars in front of him. [ 75 ] At that point he observed the stationary SUV pulled into the northbound lane of the Trans-Canada Highway and observed the Motorcycle underneath the front of the SUV. The back tires of the Motorcycle were spinning.

The engine of the Motorcycle was continuing to run and steam was evident at the front of the SUV. [ 76 ] He stopped his own motor vehicle behind the SUV and alighted from it and went directly to the Motorcycle. He turned off the engine of the Motorcycle. He observed two individuals in the SUV. A woman was in the driver's seat and a young girl was in the passenger seat. He had no interaction with either of them. [ 77 ] He then focused his attention on caring for the Motorcyclist who was also surrounded by other individuals who were attending to him. No official first responders had arrived on the scene.

He observed that the Motorcyclist who was lying on the road was unresponsive and had laboured breathing which started and stopped. [ 78 ] He did not observe the collision between the Motorcycle and the SUV, nor could he state anything about how the collision had occurred. He stated that his view of the Motorcycle was interrupted by the vehicle in front of him. Although he could not be positive, he could not recall seeing a motorcycle heading southbound on the Trans-Canada Highway other than viewing the Motorcycle at the scene of the collision.

Evidence of Sherry Murray [ 79 ] Sherry Murray is a friend of the Accused. She and the Accused had planned to spend vacation weekend at a condominium in Parksville. The Accused arrived at Ms. Murray's residence with the intention that she and the Accused would drive in a procession, with the Accused in the lead vehicle in order to guide Ms. Murray to the destination in Parksville. Accordingly, Ms. Murray was in her own vehicle following directly behind the Accused’s SUV as they travelled eastbound along Shawnigan Lake Road. [ 80 ] Ms.

Murray testified that she and the Accused had not had anything to drink while at the Murray residence and they had not taken any narcotics together prior to driving. She stated that the Accused was driving safely along Shawnigan Lake Road at approximately 60 kilometres an hour or less. She observed that the SUV came to a stop at a stop sign located at the Intersection. They

both intended to turn left, that is, northbound on the Trans-Canada Highway. No vehicle was stopped in front of the SUV. She estimated that they were at the stop sign for a few or couple of minutes. [ 81 ] Ms. Murray said that she was looking right and left while stopped behind the SUV. She observed that there was a steady amount of traffic on the Trans-Canada Highway coming in both directions, with some spaces in the traffic flow from both the north and south. She described it as being busy.

Her impression was that because of that traffic, her vehicle and the SUV could not proceed into the Intersection together at the same time in order to complete the left turn to head northbound. Accordingly she believed that she would have to wait for a further break in the traffic, after the Accused had proceeded to complete her northbound turn. [ 82 ] Ms.

Murray estimated that the Accused was at the stop sign for approximately a minute with her left-hand turn signal on before the SUV pulled into the Intersection in a normal fashion, with no rapid acceleration, and proceeded for a "couple of seconds" whereupon the SUV stopped. Ms. Murray could not see why the SUV stopped. What Ms. Murray observed was the body of the Motorcyclist flying in the air, across in front of her to the south, and then land on the roadway. [ 83 ] Ms. Murray did not observe any collision between the SUV and the Motorcycle. [ 84 ] She did not observe the Motorcycle or where it came from.

She only saw the Motorcycle once she had exited her own vehicle. [ 85 ] Furthermore, Ms. Murray was not specifically watching the breaks in the Trans-Canada Highway southbound traffic in order to form an opinion or to conclude that it was clear and safe for the Accused to be able to proceed into the Intersection to complete her turn. She could only assume that the Accused was in a position to make that observation. [ 86 ] Immediately after seeing the Motorcyclist being thrown through the air, Ms.

Murray parked her car where it was and got out and made a quick visual assessment of the Accused and the child passenger and concluded they were all right and not in need of assistance. She then went directly to the Motorcyclist who was lying on the roadway, to assist the Motorcyclist. She is a care aid by vocation. The Motorcyclist was also being attended to by other people until the first responders arrived. Ms. Murray was involved with taking the Motorcyclist's helmet off. She observed that he was unconscious, with a faint pulse, and was having trouble breathing.

After the arrival of the first responders, she and others assisted by holding up a tarp around the Motorcyclist as the first responders rendered assistance. [ 87 ] Ms. Murray is very familiar with the Intersection and indicated that she travelled through it daily, noting that there were "obstacles" that she did not necessarily see. [ 88 ] She described that at the time of this incident there was a substantial amount of construction taking place all around the area.

She stated that it was her belief that the speed limit on the Trans-Canada Highway during this construction period was 60 kilometres an hour, but was of the view that the traffic was travelling at a higher speed. [ 89 ] Ms. Murray has no recollection of speaking with the Accused following the collision. Evidence of James Wilson [ 90 ] Mr.

Wilson was proceeding in his vehicle on the Trans-Canada Highway northbound, rounding the bend approaching the Intersection and travelling in the left-hand passing lane when very suddenly he observed what he described as "impact debris flying through the air". [ 91 ] He also observed the Motorcyclist flying through the air and then observed his body lying in the northbound fast lane. He pulled his vehicle into the westbound turning lane. He placed a call to 911 to report the collision and the injuries to the Motorcyclist. He moved to the SUV to ensure that the driver and passenger were not in need of assistance.

He remained at the scene of the collision to render assistance until the arrival of the first responders. [ 92 ] He did not observe the actual collision between the Motorcycle and the SUV. Evidence of Nancy Parker [ 93 ] Ms. Parker was proceeding home from her work in Victoria, travelling northbound in her vehicle on the Trans-Canada Highway, apparently in approximately the same location as Mr. Wilson as she approached the Intersection. She was travelling in the left-hand passing lane, having just overtaken a pickup truck.

She observed one vehicle in front of her and with one about to turn into the Shawnigan Lake Road westbound turning lane. [ 94 ] Her attention was caught by her observations of a pickup truck proceeding southbound on the Trans-Canada Highway in the southbound lane towards her. She noted that the pickup truck was hauling a large boat on a trailer behind it.

She observed the pickup truck and the trailered boat approaching the Intersection and then pass through the Intersection. [ 95 ] She was not looking at the traffic directly behind that pickup truck and the trailered boat, but rather at the trailered boat, about which she had some concerns. [ 96 ] Ms. Parker suddenly observed debris had entered the air and she heard the noise of the collision. The airborne debris was landing in the northbound lane of the Trans-Canada Highway.

She also observed the Motorcyclist travelling through the air, landing on the road surface, and thereafter continuing his momentum, rolling into the left side of the northbound passing lane. She did not observe him on the Motorcycle, nor did she observe the Motorcycle in motion. She did observe the Motorcycle under the front of the SUV. [ 97 ] Ms. Parker stopped her vehicle in the northbound passing lane, put on her vehicle's four-way flashers, and ran towards the Motorcyclist to render assistance, along with three other individuals.

She and the others assisted in the removal of his full face helmet to allow him some air. He remained unconscious. The first responders arrived after some time and she continued to provide assistance by

holding the tarp around the Motorcyclist. [ 98 ] She described the northbound traffic and the southbound traffic on the Trans-Canada Highway as being moderate to heavy at that time. [ 99 ] She had no interaction with the Accused. Evidence of Gerald Kiefert [ 100 ] Mr. Kiefert resided south of the Intersection and approximately a 20-minute walk away.

On the day in question, he was walking his dog northbound on the left side of the Trans-Canada Highway facing the oncoming southbound traffic. [ 101 ] He was in a location approximately a hundred yards, "if that," south of the Intersection on the west side shoulder of the southbound merge lane that runs off of Shawnigan Lake Road. [ 102 ] From that viewing location, he was able to observe the SUV stop at Shawnigan Lake Road waiting to make a northbound turn onto the Trans-Canada Highway.

He testified that when he first saw the SUV, it was stopped at the stop line on the road surface, west of the stop sign on Shawnigan Lake Road. He testified that the SUV was stopped at that location for about two minutes. [ 103 ] Initially he testified that he heard a bang. He says that he also observed a collision. He says that the SUV turned left to head northbound. He described that the southbound Motorcycle "t-boned" into the front of the SUV and that the Motorcyclist was sent flying in the air towards him.

The Motorcyclist landed and came to rest in the passing northbound lane of the Trans-Canada Highway. [ 104 ] Mr. Kiefert provided a further description of his observations of the collision. He did not observe anything unusual about the driving of the SUV or its speed when it pulled out into the Intersection. He testified that the SUV had travelled 15 to 20 feet into the Intersection before the collision.

He did not observe the SUV take any evasive action. [ 105 ] But he then further testified and conceded that he did not actually see the Motorcycle collide with the SUV but he did observe the Motorcyclist flying through the air after he heard the bang. [ 106 ] Mr. Kiefert said that he made his way across the southbound lane of the Trans-Canada Highway, fearful that the northbound traffic would run over the Motorcyclist. He said that he was the first person to reach the Motorcyclist. He stopped the northbound traffic and then turned his attention to the Motorcyclist. The Motorcyclist was unconscious but breathing.

Others arrived to assist the Motorcyclist. Mr. Kiefert then continued to direct traffic around the fallen Motorcyclist. [ 107 ] He conceded that it "all happened so fast". He could not recall the order of the arrival of first responders nor provide an estimate of the time that it took. [ 108 ] In cross-examination, he admitted he was uncertain of how long the SUV had been stopped. He also contradicted himself by saying that he saw the SUV stopped at the stop sign and not the stop line. He testified that the SUV was stopped over the stop line, with the front tires over the stop line approaching the stop sign.

Thus, the SUV was straddling over the stop line. He identified himself to be in a location that was at a lower elevation than the surface of Shawnigan Lake Road but contended that he could see the stop line on the road surface, notwithstanding that it was behind and below the South Traffic Island. [ 109 ] He also stated he did not see the Motorcycle coming down the Trans-Canada Highway. [ 110 ] He described the traffic flow around the time of the collision as moderate. Evidence of Police Constable Richard Burdet [ 111 ] Police Constable Richard Burdet of the Saanich Police Force provided expert opinion evidence.

He was qualified by the court to give expert opinion evidence with respect to motorcycles and in particular with respect to BMW motorcycles, about vehicle collisions with motorcycles and the use of a sixth gear on motorcycles. [ 112 ] Constable Burdet was formerly a police officer in Switzerland from 1998 to 2005, during which time he received extensive motorcycle training, and in particular, on a very broad range of BMW motorcycles. [ 113 ] He has since then undergone additional training, qualifying him to instruct in motorcycle training in Canada and is presently the understudy police motorcycle instructor for the Saanich Police Department. [ 114 ] He was an Accident Reconstructionist in Switzerland.

He has also completed a collision analyst level III at the RCMP training facility. He is currently one of four Saanich police department collision analysts on duty. [ 115 ] In order to provide his evidence, he had reviewed a significant amount of material, including the Technical Collision Analyst Report prepared by Constable Amanda Curwin, photographs taken of the Motorcycle after the collision, and the witness statements.

He had no opportunity to actually inspect the damaged Motorcycle. [ 116 ] From the photographs, he observed the heavy damage to the disconnected instrument panel of the Motorcycle and the photographs of the toe operated gear selector on the left side of the Motorcycle in front of the left foot peg. It appeared to have been damaged and to have come into contact with the asphalt road surface. [ 117 ] The scuff marks on the toe operated gear selector and the marks on the road surface were consistent with the gear selector coming into contact with the road surface.

Based on what he identified in the reviewed materials as a single, two-metre long skid mark produced by the Motorcycle, he indicated that this was consistent with the rider of the Motorcycle perceiving a hazard and trying to apply the brakes.

[ 118 ] Constable Burdet confirmed that the materials that he reviewed indicated that the Motorcycle had been found following the collision to be in sixth gear. [ 119 ] Based on his experience and expertise, Constable Burdet is familiar with the make and model of the Motorcycle. He described the Motorcycle as being of a weight of 200 kilograms, which he said is not heavy for a motorcycle, and he described the engine size as being of a medium to high size engine. It can reach a maximum speed of 120 kilometres per hour in first gear.

The manufacturer rates this type of motorcycle as being able to achieve 200 kilometres per hour in fourth or fifth gear. [ 120 ] The maximum speed for a motorcycle is usually attained in the fourth or fifth gears. Hence the sixth gear is irrelevant to determining the speed of this type of motorcycle, stated Constable Burdet. [ 121 ] He testified that the sixth gear on BMW motorcycles of this type is utilized to lower the RPM level of the motorcycle engine which produces a more comfortable ride when cruising on a highway and is more fuel efficient.

The ride is less jerky and there is less response to the throttle. [ 122 ] Based upon his experience, Constable Burdet provided different scenarios by which motorcycles involved in collisions may be found to be in sixth gear when, in fact, they have been ridden in a different gear at the time of the collision or immediately preceding it. [ 123 ] The gear may be changed owing to a motorcycle rider's braking reaction to an emergency situation.

Instead of relying only on the right-hand lever that operates the brakes, the rider may also apply the left-hand lever that operates to disengage the clutch, resulting in a shift in gears. Also, the gear may change as a result of the gear changer coming into contact with the road surface. It also may be changed accidentally when the motorcycle is being removed by a tow truck driver, or if the motorcycle's instrumentation has been disconnected from the power source and an attempt is made to determine which gear the motorcycle was in by moving the gear lever.

Thus in these scenarios, it may be impossible to determine what actual gear the motorcycle was in at the time it was being ridden. [ 124 ] Constable Burdet testified that in his opinion there is no relevance between the gear that the Motorcycle was found in and a determination of what speed the Motorcycle was travelling at immediately prior to the collision. [ 125 ] Constable Burdet was unable to express any opinion about the speed that the Motorcycle was travelling at immediately prior to the collision with the SUV. [ 126 ] Constable Burdet testified that in the hundreds of crashes that he has investigated between motor vehicles and motorcycles, there are situations where the driver of the motor vehicle does not see the motorcycle. [ 127 ] He says that there are three common factors in collisions between motorcycles and motor vehicles which he described as being equally attributable to the motorcycle driver and to the vehicle driver in causing an accident.

The common factors are identified as follows: 1. misjudging of speed 2. misjudging of distance 3. misjudging of size [ 128 ] Motor vehicle drivers may misjudge these three factors as they relate to a motorcycle because the size of the motorcycle's front end makes it a narrow target to see. The narrow target size and a smaller front light makes it possible for the motorcycle to blend in with the traffic behind it.

Hence it makes it more difficult to be seen and to be defined, and therefore, it is possible that the motorcycle "may become invisible to a motorist". [ 129 ] Constable Burdet agreed that the Motorcycle involved in this collision, because of its small facial focus presentation and its thin size and its black colour and the location of its yellow markings "was not the easiest motorcycle in the world to see". [ 130 ] He further noted that he was uncertain as to which of the two front lights, mounted side by side on the Motorcycle, was on at the time of the collision.

But he noted that the bigger front light is the high beam light and that the smaller light is the daytime running light and headlight. He was of the belief that this information was contained in the Technical Collision Analyst Report. [ 131 ] He expressed the opinion that the speed at which the Motorcycle was travelling prior to the collision may compromise the time frame for the driver of motor vehicle to observe it. [ 132 ] Constable Burdet is familiar with BMW motorcycle jackets.

He stated that commonly they will be black in colour and trimmed with a yellow colour, similar to that of the Motorcycle and may be adorned with some reflective material which is illuminated when the beam of a headlight falls on it in the dark. Evidence of Constable Amanda Curwin [ 133 ] Constable Amanda Curwin was qualified by the court in these proceedings as a collision analyst and was accepted as an expert qualified to provide opinion evidence on the following matters: 1. To determine the dynamics of the collision between the SUV and the Motorcycle through

interpretation of physical evidence found at the scene and during the vehicle examinations; 2. To determine the operating condition of the headlamps on the Motorcycle; 3. To determine any visibility issues which could have impeded the driver of the SUV.

[ 134 ] Constable Curwin testified about the contents of her Technical Collision Analyst Report, her findings, and the conclusions expressed by her in that report. [ 135 ] As part of her on-site investigation following the collision and based upon the available physical evidence, Constable Curwin determined that the Motorcycle was travelling on the right side (that is, the west side) of the single southbound lane of the Trans-Canada Highway.

I understand from her evidence that the Motorcycle was therefore actually positioned and travelling closer to the right side of the southbound lane rather than in the middle of the lane or on the left side of that lane. [ 136 ] She also determined that the point of collision between the Motorcycle and the SUV was closer to that travel path of the Motorcycle rather than further to the east where the SUV came to rest, with the Motorcycle caught under its front portion. [ 137 ] Constable Curwin was able to locate in that southbound lane of the Trans-Canada Highway what she identified as the Motorcycle's tire skid mark from braking, being 2.92 metres in length. [ 138 ] In that southbound lane, Constable Curwin also located a small metal scrape on the highway's asphalt surface which was located 2.66 metres southeast from the end of the tire skid mark.

The metal scrape measured 0.13 metres long; it appeared to be caused by the contact on the roadway of a thin metal object which was likely the left foot peg of the Motorcycle. That was consistent with the evidence of the asphalt scrapings on the end of the Motorcycle's left foot peg. The smaller metal scrape led in a west to east direction.

At a distance of 2.08 metres east of the metal scrape two longer gouges measuring 0.32 metres and 0.79 metres long were also heading in a west to east direction to the final rest positions of the Motorcycle and the SUV. [ 139 ] Constable Curwin was able to observe damage on the hood of the SUV caused by the contact from the Motorcyclist.

It included black scuff marks caused by the Motorcyclist's boots, blue clothing transfer marks from the rider's gloves, and a small piece of fatty tissue near the centre of the hood. [ 140 ] Constable Curwin was unable to prepare any possible velocity calculations using vault formulas because of the Motorcyclist's contact with the hood of the SUV and the lack of evidence to locate the Motorcyclist's actual landing point on the highway surface. [ 141 ] During the on site investigation, Constable Curwin made observations of shadows across the southbound lanes of the Trans- Canada Highway and the location of the Northwest Corner Lamppost in relation to the stop line on Shawnigan Lake Road, all as part of her consideration of potential visibility issues for the driver of the SUV. [ 142 ] As noted above, further physical inspections of both the Motorcycle and the SUV were conducted by Constable Curwin.

Particular attention was paid to the front lights on the Motorcycle and on the SUV. "Hot Shock" warping and distortion was noted on some lightbulbs, meaning those lights were illuminated at the time of the collision. [ 143 ] The Motorcycle was found to be in sixth gear when examined following the collision. [ 144 ] At a later date, Constable Curwin once again attended at the Intersection in order to conduct observations and time distance testing using a predetermined number of independent vehicles coming to the stop line and then turning left onto the Trans-Canada Highway.

The time required from the stop position at the stop line to the point of impact of the Motorcycle and the SUV averaged 1.67 seconds. [ 145 ] A series of calculations were made by Constable Curwin to determine the Motorcycle's travel distance while perceiving and reacting to the hazard of the SUV prior to braking and leaving the tire mark skid and the required distance for the Motorcyclist to perceive and complete a hard stop to avoid the collision with the SUV. [ 146 ] Constable Curwin made the assumption that the Motorcycle was travelling at 80 kilometres per hour, apparently being what she believed (as confirmed by her in her viva voce evidence) to be the speed limit in the area of and approaching the Intersection, rather than 60 kilometres per hour being the posted speed in the construction speed zone as noted in the evidence of Mr.

Englund from the Ministry of Highways and Infrastructure. [ 147 ] In fact, Constable Curwin conceded in her evidence that she had no idea what speed the Motorcycle was travelling preceding the collision as it approached the Intersection. [ 148 ] She made the further assumption that the SUV was at the stop line rather than the stop sign, which would invalidate some of her calculations.

Further confusion arose in the Technical Collision Analyst Report conclusions when she made reference to the "stop sign" when she, in fact, intended to say the "stop line". [ 149 ] Nonetheless, from the whole of her observations and her investigations, she formulates some useful opinions upon which she based her conclusions. They may be summarized as follows: 1.

From a stop position on Shawnigan Lake Road the SUV proceeded into the Intersection and into the path of the Motorcycle heading southbound on the Trans-Canada Highway, throwing the Motorcyclist from his seat, thereby striking the hood of the SUV and then coming to rest some 15.09 metres from the point of impact. The SUV continued to travel forward and partially over top of the Motorcycle, pushing it in an easterly direction across the southbound lane and into the centre of the Intersection. 2.

The centre primary headlamp of the Motorcycle was illuminated at the time of the collision, as were the left-hand turn signals of the SUV. 3. The Northwest Corner Lamp Post partially impeded the visibility of the southbound lanes of the Trans-Canada Highway from the vehicle at the stop line on the South Shawnigan Lake Road. However, by moving a vehicle closer to the southbound lane of the Trans- Canada Highway, that partial obstruction was mitigated and a clearer view of the southbound lane could be achieved.

The sunlight, the sun's position and shadowing of the southbound lane caused a change in light levels between the location of the SUV at the stop line and

the southbound lane.

However, because the headlamp of the Motorcycle was illuminated, it should have been visible to traffic looking northbound. [ 150 ] In the final sentence of Constable Curwin's conclusions she states, "for an unknown reason the driver of (SUV) pulled into the traffic to head northbound into the path of (the Motorcycle)." [ 151 ] Based on the whole of Constable Curwin's evidence, it is clear from the physical evidence on the road that from the time the Motorcyclist perceived the hazard and applied brakes, the Motorcyclist had inadequate time and distance to stop and to avoid the collision with the SUV.

Defence’s Case [ 152 ] Defence called the following individuals to testify as part of the defence's case: 1. The Accused who testified on her own behalf 2. Darren Englund; 3. Hannah Rankin [ 153 ] I have set out a

summary of the additional important relevant evidence of each of these witnesses that I accept as factually correct, except where otherwise noted. I have also noted where that evidence is materially in conflict with other evidence. Evidence of Shannon Rae Ward [ 154 ] The Accused is now known as Shannon Rae Maxwell. She is 44 years of age and a resident of Saanich, in the greater Victoria area.

She has 24 years of driving experience and was the holder of a valid British Columbia driver's licence at the date of the collision between the SUV and the Motorcycle. [ 155 ] She had no restrictions on her driver's licence and was not obliged to wear glasses when driving, but did confirm that in 2014 that she utilized glasses for reading, for looking at computer screens and also TV. She stated that she had no problems with her distance vision. [ 156 ] On July 7, 2014, she had attended a work-related seminar which ended early.

This permitted her to leave her home in Victoria in the early afternoon in the company of Hannah Rankin and to proceed up Island in the SUV to the residence of Sherry Murray, located off of Shawnigan Lake Road. Her ultimate destination was Parksville for a mini-vacation with a planned duration of one week. She was not in a hurry to arrive at the destination. She testified that she did not consume any alcohol or drugs prior to driving. The Accused departed from the Murray residence with Ms. Murray following the SUV in her own vehicle.

Because of the warm weather, the air conditioning in the SUV was on and the windows were up. [ 157 ] The Accused described how she travelled down Shawnigan Lake Road towards the Intersection. She said that she was travelling at a speed of between 50 and 60 kilometres. Hannah Rankin was texting the Accused's daughter on the Accused's cellphone during this part of the drive.

She testified that Hannah Rankin ceased to text as they arrived at the Intersection and Hannah was assisting her in watching the traffic. [ 158 ] The Accused testified that she approached the Intersection, slowed down, and stopped the SUV at the stop sign.

She then rolled a little bit forward past the stop sign so that she could observe traffic on both sides that is in the northbound and southbound traffic lanes on the Trans-Canada Highway. [ 159 ] When she arrived at the Intersection, she noted that there was no traffic proceeding through the Intersection but stated that she “did not want to chance it" by immediately proceeding through the Intersection to complete her left-hand turn. [ 160 ] Therefore, she waited for traffic to clear on both her left and right hand sides.

She observed that the traffic on the left (that is the southbound lane of the Trans-Canada Highway) was going to clear before the traffic on her right side (that is the northbound lane of the Trans-Canada Highway). [ 161 ] She described how she moved forward, intending to get halfway into the Intersection so that when the traffic in the northbound lane to her right cleared, she could complete her left-hand turn and go in behind the last northbound car and keep travelling in a northbound direction. [ 162 ] She described how when she got "halfway through the right-hand side, something in my eye triggered me and I looked and that's when I saw the guy on the motorbike for the first time". [ 163 ] She testified that when she was stopped at the Intersection, she looked up the Trans-Canada Highway to the north at least three times and observed "about four cars coming down" (that is the southbound lane) and "so I knew that after the last car, there was nothing behind that and I would be free to go". [ 164 ] She further testified that there were about five cars coming from the south in the northbound lane of the Trans-Canada Highway at this time. [ 165 ] She recalled being stopped at the Intersection for a period that was not very long, estimating it between 30 seconds to a minute. [ 166 ] When she was looking northbound up the Trans-Canada Highway, she had no recollection of there being anything obstructing her view in that direction.

[ 167 ] When asked if she saw the Motorcycle, she said that she only saw it when it was close enough to the SUV that she was able to only see the neck and the sunglasses of the Motorcyclist.

She described how the Motorcycle struck the SUV at the front on the driver's side. [ 168 ] In recapping her evidence in her examination in chief of the events that occurred as she approached the Intersection, she further testified that: Once the last car left, I looked one more time, I looked one more time to make sure it was clear and then I proceeded to go … I was sort of watching the traffic on the right, gauging when the last car would leave [that being to her right] and then out of the corner of my eye I saw the guy on the motorbike. [ 169 ] She was asked in her examination in chief about the timing sequence of when she last looked up to the left (that is to the north to view the southbound lane of traffic of the Trans-Canada Highway) and when she had proceeded to move to make her turn.

Her response was that she had looked when her foot was coming off the brake and she saw that there was nobody coming. [ 170 ] The Accused was vigorously cross-examined.

In particular, she was asked about her version of events at the Intersection as contained in the Accused's Police Statement taken by Constable Hart and her viva voce evidence provided in her examination in chief. [ 171 ] The Accused conceded that she did not tell Constable Hart that she had come to a stop at the stop line before she reached the stop sign, that she then proceeded forward past the stop sign but before the southbound lane and made a full second stop before proceeding into the Intersection. [ 172 ] Most importantly, the Accused agreed that she told Constable Hart, which was detailed in the Accused's Police Statement, that once she had looked to the north and saw that the last of the southbound traffic was going past her that "it looked like it was going to clear".

Furthermore, she told Constable Hart that she "knew it was clear for a second or two" and that she then was continuing to observe the traffic coming from her right and that she was waiting for the last car to pass before pulling out and swinging in behind it.

She also agreed that she never told Constable Hart that she made a final last look to check on the traffic to her left before proceeding into the Intersection to complete her left-hand turn. [ 173 ] In response to that question, the Accused stated: "As a driver, I would have looked left again before I went out". [ 174 ] She also expressed this separately during cross-examination by saying what I understand to be in the context of her driving: "When I do anything, I check one more time." From that, I take it the Accused was indicating that she looked to the left a final time because it is her normal practice. [ 175 ] In cross-examination she stated that at the time she gave her statement to Constable Hart immediately following the collision, she was in shock and in a daze, thus suggesting that this accounted for her not making mention of the final look to the north before proceeding into the Intersection. [ 176 ] Her other excuse for not making mention to Constable Hart of the final look to the left immediately before proceeding was because "I didn't". [ 177 ] In a very direct question posed to her in cross-examination about "How did you miss the Motorcycle?" she responded by saying, "I cannot say".

In other words, she could not offer an explanation. She further agreed that there were no obstacles to her view to the left and the southbound lane and agreed with Crown's suggestion that it was "a clear shot to where the traffic was coming from the left".

In other words, she had an unobstructed and clear view of that traffic. [ 178 ] She indicated that she was wearing her sunglasses, that the radio was not playing, that she was not talking with Hannah Rankin, that there were no other distractions, the sun was not in her eyes looking south, there were no shadows impacting on her view of the traffic, and the SUV was mechanically sound. [ 179 ] She did also confirm that this particular occasion was the very first time that she had travelled through the Intersection from Shawnigan Lake Road.

She acknowledged that she had on several occasions travelled through the Intersection along the Trans-Canada Highway and she acknowledged that it could be a busy area, but she did not think it was very busy that day. She also agreed that drivers had to be careful when travelling through that Intersection. [ 180 ] In response to questions about what evasive action she took, she indicated that she tried to steer her vehicle to the right but the Motorcycle just keep coming with her, as she was moving across the south lane.

She further confirmed that when she first saw the Motorcyclist, he was very close, only about a foot away, that she could not actually see the Motorcycle but only saw in the area of the Motorcyclist's neck. Evidence of Darren Englund [ 181 ] Darren Englund is an employee of the Ministry of Transportation and Infrastructure for the Province of British Columbia (MOTI). [ 182 ] At the time of the collision, he was the Regional Project Manager and oversaw the Malahat/Shawnigan Lake Improvement Project on behalf of his Ministry. [ 183 ] Mr.

Englund provided testimony based on his personal knowledge of the construction that was taking place on the Malahat Drive in and around the Intersection, and based upon the business records of MOTI. [ 184 ] The construction zone at this time extended along the Trans-Canada Highway from a point 250 metres south of the Intersection to the Malahat Summit, being approximately 2.8 kilometres north of the Intersection. Based on his knowledge and information available

to him, there was no construction taking place in the immediate vicinity of the Intersection at the time of the collision but there was alimited amount of construction taking place lying to the north of the Intersection closer to the Malahat Summit. [185] From the information available to him, he expressed the view that there were a number of posted permanent signs indicating thatthe speed limit in the construction area on the date of the collision and at the time of the collision was 60 kilometres per hour. [186] To the best of Mr.

Englund's knowledge and based upon available records, there were no 80 kilometre speed zones in effect atthe time of the collision within the construction zone surrounding the Intersection. Evidence of Hannah Rankin [187] At the time of the trial, Hannah Rankin was only 13 years of age. She was only approximately 11 years of age at the time of thecollision. [188] She testified she recalled riding in the passenger seat of the SUV. She recalled texting the Accused's daughter on the Accused'scellphone while on the trip towards the Intersection. This necessitated her looking down to the cellphone.

She recalled speaking to theAccused but could not recall the topic of conversation or whether the Accused spoke to her. [189] She recalled the SUV stopping at the Intersection but could not recall for how long. She recalled seeing the vehicles on theTrans-Canada Highway. She recalled looking out the front window of the SUV. [190] She recalled that she looked out her side window but could not be certain that she looked out the driver's window.

She recalledlooking down at the cellphone for further incoming text messages as the SUV started to proceed into the Intersection. [191] She first saw the Motorcycle when it was in front of the SUV. [192] Hannah Rankin did not sustain any injuries as a result of the collision. Case Authorities Relied Upon by the Parties [193] The following case authorities have been presented to the court and have been referred to by counsel for both the defendant andfor the Crown: 1. R. v. Reid, 2010 BCPC 32 , [2010] B.C.J. No. 555; 2. R. v. Goldade, 2009 BCPC 62 , [2009] B.C.J. No. 414; 3. R. v.

Tubbs, 2006 BCPC 224, , [2006] B.C.J. No. 1206; 4. R. v. Kowalewich, 2005 BCPC 633, , [2005] B.C.J. No. 2911; 5. R. v. Wiebe, 2014 BCPC 25 , 2014 B.C.J. No. 804; 6. R. v. Iverson, 2006 BCPC 138 , 2006 B.C.J. No. 801. [194] Defence counsel places particular reliance on R. v. Tubbs, R. v. Wiebe and R. v. Iverson. [195] I have reviewed each of these authorities carefully in their entirety and considered the guidance provided by each in my analysisand in reaching my decision, notwithstanding that I may not make specific mention of a particular case in my reasons.

Crown’s Position [196] Crown submits simply that this is a case of the Accused failing to keep a proper lookout as she entered into the Intersection, shefailed to see the Motorcycle and the Motorcyclist.

Thus the SUV being driven by the Accused proceeded across the southbound lane ofthe Trans-Canada Highway when it was unsafe to do so resulting in the collision with the Motorcycle and the catastrophic injuries to theMotorcyclist. [197] Crown submits that based on the evidence before the court that the Crown has demonstrated beyond a reasonable doubt that theAccused drove in a manner which meets the required test for driving without due care and attention as stated in R. v. Tubbs and adoptedin R. v. Reid.

That is Crown has shown "a manner of driving which in all surrounding circumstances departs from the accustomed, soberbehaviour of a reasonable man". [198] Crown places particular reliance on the version of events described in the Accused's Police Statement, which Crown says wasmade while it was fresh in the mind of the Accused.

Crown further relies upon the Accused's own viva voce evidence that there were noobstructions that impeded her view of the oncoming traffic in the southbound lane of the Trans-Canada Highway, including the shadowsfalling over the southbound lane. [199] Crown further submits that even if there was some obstruction of the Accused's view of the southbound lane of the Trans-Canada Highway resulting from the Northwest Corner Lamp Post, that it was easy to mitigate by proceeding forward.

That is what theAccused says she did. [200] Crown says that the evidence of the Accused that she made further observations to the left, immediately before proceeding froma stopped position at Shawnigan Lake Road and while attempting to merge in behind traffic coming from the right simply cannot beaccepted. Crown argues that if she had looked, then she could and would have observed the oncoming Motorcycle ridden by theMotorcyclist which, according to the evidence of Constable Curwin was very close to the SUV as it proceeded into the Intersection.

[ 201 ] As a result of her action of proceeding into the Intersection, neither the Accused nor the Motorcyclist had an opportunity to take any evasive action. [ 202 ] The failure of the Accused to keep a proper lookout and the Accused's failure to see the Motorcycle and the Motorcyclist prior to proceeding into the Intersection and thereby resulting in the collision establishes that the Accused was not driving with due care and attention as is required under the Motor Vehicle Act . [ 203 ] Crown differs from the opinion expressed by Constable Curwin's statement that: "for an unknown reason the driver of (the SUV) pulled into the traffic to head northbound into the path of (the Motorcycle)".

The reason, says Crown, was the failure of the Accused to keep a proper lookout for other traffic approaching or in the Intersection.

Defence's Position [ 204 ] Defence submits that Crown has failed to meet its burden of establishing beyond a reasonable doubt the lack of due care and attention of the Accused in her driving at the time she proceeded into the Intersection, with the resulting collision between the SUV and the Motorcycle. [ 205 ] Defence argues that the fact that the Motorcycle collided with the SUV is not in itself evidence of any lack of reasonable care or due care and attention on the part of the Accused. [ 206 ] Defence further notes that the Accused does not have to prove how the accident happened or what caused the accident, only that she acted prudently and reasonably before entering into the Intersection. [ 207 ] I am urged by defence counsel

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