R. v. Prad Date:, 2017 BCPC 168

Citation: R. v. Prad Date: 20170203 2017 BCPC 168 File No: 39262-4-C Registry: Courtenay IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. TIMOTHY DAVID PRAD REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE P. DOHERTY Counsel for the Crown: J. Boccabella Counsel for the Defendant: D. Marion Place of Hearing: Courtenay , B.C. Dates of Hearing: November 21, 22, 23, 24, 2016 November 28, 29, 30, 2016

December 1, 2016 Date of Judgment: February 3, 2017 INTRODUCTION [ 1 ] THE COURT: On a cold, damp, sometimes rainy, sometimes foggy winter's night in December of 2014, Paul Bally, a local teacher in this community, decided to go for a ride on his bike along the Old Island Highway sometime after 7:00 p.m. [ 2 ] At some point during his ride, a pickup truck operated by the accused, Mr. Prad, collided with Mr. Bally, who lost his life. [ 3 ] In the result, Mr.

Prad was charged on Indictment 39262-C-4, out of the Courtenay Registry, as follows: Count 1 . . . on or about the 15th day of December, 2014, at or near Fanny Bay, Province of British Columbia, having the care, charge or control of a vehicle that was involved in an accident with another person, Paul Bally, resulting in the death of that person, and knowing that bodily harm was caused to that person, was reckless as to whether the death of that person resulted from that bodily harm and did, with intent to escape civil or criminal liability, fail to stop his vehicle and give his name and address and offer assistance, contrary to Section 252(1.3) (

b) of the Criminal Code .

Count 2 . . . on or about the 15th day of December, 2014, at or near Fanny Bay, in the Province of British Columbia, did operate a motor vehicle, in a manner that was dangerous to the public having regard to all the circumstances including the nature, condition and use of the place at which the motor vehicle was being operated and the amount of traffic . . . at the time [that] was or might reasonably be expected to be at that place, and thereby did cause the death of Paul Bally, contrary to Section 249(4) of the Criminal Code . [ 4 ] Trial took eight days to complete and the viva voce and documentary evidence in this case is voluminous.

Decision was reserved to this date. CROWN EVIDENCE [ 5 ] It will be helpful, I think, to review the evidence of the various witnesses. [ 6 ] Evelyn Bally is the widow of Paul Bally. She and her husband lived, with their two children, in Fanny Bay just south of Courtenay, in what could best be described as a rural or semi-rural area of the Comox Valley. [ 7 ] Paul Bally was a teacher at Lake Trail School in Courtenay and a serious bike rider. According to Mrs. Bally, her husband would often ride his bike to or from school, a ride that could take from an hour to an hour and a half, depending on conditions.

On weekends, his rides would take him south to Bowser and back to Fanny Bay on the Old Island Highway, another lengthy ride. [ 8 ] On December 15, 2014, the Ballys were hosting Mrs. Bally's mother and Mrs. Bally's sister. Everyone was home by 5:00 p.m., and everyone but Mr. Bally ate dinner. It was his practice to eat after his bike ride and he intended to ride that night. [ 9 ] Mrs. Bally had a commitment in Cumberland that evening and left her Fanny Bay home around 7:00 p.m. She noted that her husband had not yet set out on his bike ride. Mrs. Bally described her husband's riding gear.

It included a reflective jacket, a helmet with a headlamp, and an adjustable red rear light powered by an under-the-seat battery. [ 10 ] Mrs. Bally, who had driven from Fanny Bay to Cumberland and back that evening, said that it had been raining all day and during her drive she was forced to use her windshield wipers. She returned to her home around 10:00 p.m.

Alarmed that her husband had not returned from his bike ride, she immediately got into her vehicle and drove south on the Old Island Highway toward Bowser, to see if she could locate him. [ 11 ] Not finding her husband, she then drove north as far as Buckley Bay. Now considerably concerned, she returned to her home and enlisted the assistance of her sister and once again drove south. Her sister drove slowly with her wheels over the fog line, while Mrs. Bally hung out the passenger side window holding a flashlight pointing into the ditch.

From a distance of 15 or 20 feet, she spotted the red rear light of the bike and then her husband's reflective jacket. She described her husband as lying face down, shoulders in the ditch, and his body twisted sideways. His legs were tangled with the bike. Mrs. Bally kicked the bike away to roll her husband over, as his face and mouth were in the water of the ditch. She noted that Mr. Bally's helmet was broken, with part of it still on his head.

His tongue was swollen, his pallor grey, and she observed blood on his jacket. [ 12 ] The sawmill lights across and beyond the highway oriented her as to location, and she had her sister call 9-1-1. At that point, she could detect no sign of life from her husband. She attempted to move him to the roadside but he was too heavy. [ 13 ] Amanda Reale is Mrs. Bally's sister. She confirmed that her sister left Fanny Bay around 7:00 p.m. for Cumberland and Mr. Bally for his bike ride shortly thereafter. Around 8:30 p.m., Ms. Reale noticed that Mr. Bally had not yet returned from his ride.

She was somewhat concerned about this, but the Bally children, no doubt aware of their father's propensity for long rides, were not. [ 14 ] It was not until Mrs. Bally returned around 10:00 p.m. that the alarm went off and her sister immediately left to search for her husband. [ 15 ] When Mrs. Bally came back from her initial search, it was decided that the sisters would go out together, with Ms. Reale

driving and Mrs. Bally doing the search. [ 16 ] As she drove slowly along the Old Island Highway, she said it was raining and her wipers were on. She, too, described finding Mr. Bally in the shallow ditch and noted that the right rear light of the damaged bike was still lit. [ 17 ] Cindy Perry’s evidence was some of the most significant civilian evidence provided during the trial, and it is worth reviewing in some detail. [ 18 ] Ms. Perry is 51 and employed at St. Joseph's Hospital. She was a friend, of sorts, with the accused.

At least she knew him well enough to borrow his truck, the same vehicle later involved in the fatal accident. She used it to visit a friend in Chemainus, a community located south of the City of Nanaimo, off the Old Island Highway. [ 19 ] I had the impression Ms. Perry tarried longer at Chemainus than Mr. Prad anticipated. Ms. Perry sent him a text message at 5:25 p.m., advising that she was on her way back up the Island Highway. Mr. Prad's response or complaint to her was that he had “only two smokes and no beer.” Clearly, from that text and later interactions with Ms. Perry, Mr.

Prad was a little annoyed that she was returning so late. [ 20 ] Ms. Perry testified that she found no fault with Mr. Prad's pickup, as far as steering and braking was concerned. She did note the headlights were not properly aligned and, in particular, the passenger side headlight was misaligned. Her evidence was that she had no issue with the windshield wipers and no complaint about being able to see the road through the windshield. [ 21 ] Ms. Perry completed her journey up Island to Mr. Prad's residence without incident, arriving at 6:15 p.m. As soon as she returned, Mr.

Prad left to purchase beer and cigarettes. She observed no evidence that Mr. Prad had been drinking prior to her arrival. He returned from the store and consumed one Budweiser beer. While she had known Mr. Prad long enough to have seen him impaired, her evidence was that he was not impaired when she arrived, and the one beer he consumed over the half hour she spent with him did not alter his condition. [ 22 ] Ms. Perry requested a ride to her home about 15 minutes away and Mr. Prad obliged. She noted that it continued to rain and Mr. Prad had his wipers on.

She also observed conditions to be dark. [ 23 ] At some point during their journey, she was surprised to see a lone cyclist riding south toward them. As it happened, she had known Paul Bally for over a decade and recognized him immediately. She thought to herself, and I quote directly from her evidence, "Why are you out there in these conditions?" [ 24 ] Ms. Perry observed that the cyclist was using a headlamp and wore a reflective jacket, but when he had passed and she looked to her rear she could not see a reflective light, although she specifically looked for it. [ 25 ] Ms.

Perry was also able to offer observations on the driving abilities of Mr. Prad that evening. She noted, for example, that Mr. Prad had a tendency to drift to the right within his lane, indeed so much at times that he was "a little bit onto the shoulder of the road." [ 26 ] At one point, he engaged his turn signal quite early; in fact, well before the road he actually intended to turn onto, off the Old Island Highway, so early that there was an intervening intersection and a car was waiting to turn onto the highway. Had the operator of that vehicle depended on Mr.

Prad's indicator light and entered the highway, there might well have been a collision. It was a curious thing to do and quite misleading to waiting traffic, but it also seemed consistent with Mr. Prad’s inclination to operate a motor vehicle in an excessively cautious fashion. I will have more to say about Mr. Prad's driving shortly. [ 27 ] During the ride, Ms. Perry made some remark about the manner of Mr. Prad's driving. She left the distinct impression it was not the first time she had been critical of his method of operating a motor vehicle. [ 28 ] As to Mr. Prad's emotional state, Ms.

Perry testified that he was very quiet and that he often gets quiet when he is upset. He appeared to be upset that she had used the pickup to visit an old boyfriend and was late returning. [ 29 ] In cross-examination, Ms. Perry, who lives near and has used the Old Island Highway for many, many years, told the Court that there was no doubt in her mind that Mr. Prad was sober, that oncoming traffic can tend to momentarily blind a driver on that road, that the Old Island Highway is twisty and narrow, and the fog line is not always visible. She also confirmed that, in her experience, Mr.

Prad tends to drift to the right when he drives. She described him as a "pokey driver". [ 30 ] As to Mr. Bally, she was of the view that this road is dangerous at the best of times, that many people have lost their lives on it, and that she did not think it safe for a man she knew for more than a decade to be out in those conditions. She was, she said, concerned about Mr. Bally's safety and that is what caused her to check to see how visible he might be to overtaking traffic. [ 31 ] Mr. Prad dropped Ms. Perry at her home and re-joined the Old Island Highway to return to his residence. On the way, he struck Mr.

Bally. I will have a great deal more to say about that moment, but first I want to canvass what transpired via text messages with Ms. Perry after Mr. Prad arrived home. [ 32 ] The messages were entered as Exhibit 7 in these proceedings, and I will start from the first one from Mr. Prad to Ms. Perry at 7:38 p.m., "OMG, hit a deer no way home." At 7:45, he wrote, "Sorry, hit a deer on the way home." She wrote back, "OMG, that's not good. Whereabouts this time?" 8:22, he said, "In the dark spot." [ 33 ] She sent a text at 8:31, "LMAO yes, lots of darkness out there.

Where did it hit your truck?" He responded, 8:36, "Right side, no headlight or turn, hood is bent." She wrote back at 8:38, "OMG, that's not good, but same side as last one, so now you need both lights, that's shitty." He wrote back, 8:42, "No, same side." Again at 8:43, "Need one light." [ 34 ] She wrote back at 8:58, "Oh, on the driver's side this time, misunderstood, thought you said headlight and turn signal." He

wrote back at 9:03, "Right-hand side if you were looking out of the truck." [ 35 ] 9:09, she said, "Yeah, passenger side, which is the same side as last time." 9:11, he wrote, "Yes, and hood too." She wrote back, 9:12, "Oh, ouch, how bad is the dent and I assume another dead deer too." He said at 9:17, "Dent is bad. Deer is not here anymore." From Ms. Perry to him at 9:28, "Not good. Hopefully no damage under the hood. They will never learn. Very sad, never mind the repair bill." [ 36 ] He wrote to her at 9:31, "True, not her fault at all. I could not turn in time.

I feel bad." She to him, "Yeah, and they tell you not to swerve either. Just real shitty when you have to repair the damage done." He to her, "And they say hit it too, bullshit, try not to hit it." She to him, "Nancy hit one a couple of years ago, damage was almost $4,000. Actually if you swerve to avoid one and crash, the insurance won't cover damage to your vehicle." [ 37 ] The text messaging continues the next day; "Good morning to you." This is at 7:49 the next morning.

She to him at 7:58, "Good morning to you." Eight o'clock, he to her, "The Old Island Highway was closed so I had to take the upper one this a.m." 8:01, she to him, "Oh, where was it closed?" He responded at 8:04, "Around Rosewell." She to him, 8:05, "Okay, so it won't affect us going in." Then 8:06, Mr. Prad writes, "No, not that I know." [ 38 ] Then Mr. Prad writes, and this is now late in the morning at 11:17, "Did hear something about missing FB who was hit and killed on highway last night and they are looking for suspect vehicle.

Maybe that's why the highway was closed this a.m." [ 39 ] She to him at 11:18, "Could be." Then she writes at 11:19, "Are you sure you hit deer last night" several question marks "LMAO." He writes back at 11:20, "LMAO." Then she writes to him, "Oh, well it wasn't you 'cause vehicle was white apparently, all well." 12:06, she writes to Mr.

Prad, "Just read on FB, happened about 11 p.m. last night around Curran Road, it's a white Ford pickup they are looking for, a 48-year-old male." [ 40 ] Then she writes to him, by now it is 3:09 in the afternoon, "BTW I found out you just missed fatal hit-and-run last night, was someone I know and was also someone you passed driving back home.

That's why I said are you sure it was a deer." He writes back at 3:11, "Yep, I am." [ 41 ] Then she writes at 3:14, "Okay, 'cause they are looking for a Ford truck with damage to passenger side, we passed him heading south just after Coal Creek Bridge." He writes to her at 3:16, "They want a white one." She writes back, "They believe it may be a white Ford with damage to headlight and hood." He writes back at 3:23, "K." [ 42 ] As far as the text message exchanges, for our purposes, that exchange will be sufficient. There is more. [ 43 ] Crown called Corporal Jamison, an identification officer with the RCMP.

He provided a book of photographs, marked as Exhibit 8, showing the damage to the passenger side headlamp and hood of Mr. Prad's truck. He also provided some photographs showing that portion of the road where the collision took place, as well as a few photographs of the debris alongside the highway. [ 44 ] Crystal Francisity is an ambulance attendant who arrived on the scene at 11:36 p.m. Her immediate observation of Mr. Bally was that he had sustained at least two obvious head injuries. She said there was about a foot of water in the ditch. All attempts to revive Mr. Bally were unsuccessful.

There was no sign of life. [ 45 ] The ambulance attendant also testified that she saw what she described as a blinking red light from about 20 feet away. Clearly she is mistaken. The red rear light on the bike was still illuminated, but the evidence that it was in a steady-state mode and not blinking is overwhelming. [ 46 ] Ms. Francisity described the weather conditions as she found them; "spitting rain, a raw night, with that portion of the highway dark and unlit." [ 47 ] Constable Bigger, coincidentally, was in Fanny Bay just 10 minutes before the 9-1-1 call was relayed to him.

This officer arrived in time to assist the ambulance crew already present. He was the first to take photographs of the scene as he found it. They are marked as Exhibit 11. Whether because the quality of the photographs, or the environment itself, they depict an exceedingly dark road and accident scene. [ 48 ] Constable Bigger contacted his supervisor and it was determined that the RCMP traffic accident analyst should be called out.

The police officer on scene then blocked the southbound lane with his cruiser. [ 49 ] At this point in the proceedings, evidence in the trial proper came to a halt while some hotly-contested evidence was offered by Crown within a voir dire . In the end, I ruled the evidence, described by one and all as "demonstration evidence", admissible for the limited purpose offered; namely, that it did not purport to be a proper reconstruction of the accident and, as such, could only be used as an aid to the Court to assist in providing some idea of the scene and conditions that might have prevailed on the night in question.

The best that can be said of this evidence is that it is an approximation. However, as an aid, the Court found it both admissible and useful. [ 50 ] I want to emphasize, however, that this evidence, while helpful, was not created by officers who had the experience or the expertise, [which they readily conceded,] to present a reconstruction of the accident. A professionally-done reconstruction is much different than an approximation that may or may not capture conditions prevailing and the accident itself. [ 51 ] The demonstration, in part, was of assistance to both Crown and the accused, but it is not definitive.

I do not rely on this evidence as a re-enactment. [ 52 ] Before I review this evidence, I want to comment on the professionalism of the investigators. Except on one occasion when the Court received an unsolicited, unwanted, and unwarranted opinion by way of exclamation from one of the officers during the creation of the video, police conducted themselves in a textbook professional manner. These police officers were exemplary and objective

throughout. All involved should be commended for their work. [ 53 ] In 2014, Constable Grabb was a 14-year veteran of the RCMP assigned to general duties. He was called to assist in the investigation and arrived with the view that there was no clear way to show the scene as it probably looked on the night in question, without creating some sort of video demonstration. [ 54 ] Constable Grabb, like Crown, assured the Court that he offered this video by way of demonstration and that it was in no way intended to be a re-enactment, something he was not qualified to create.

He advised the Court that the goal was, to use his term, "familiarization." That is an excellent descriptive word and I prefer it over demonstration. [ 55 ] First, police obtained a near identical pickup truck, a Ford F350 model, as that driven by the accused on the date in question. Police conducted the demonstration exactly one month later, January 15, 2015, in conditions similar to those that existed one month prior.

It was, for example, raining with light overcast, no artificial lighting was added to the highway, and they used the same model pickup truck to create the video. [ 56 ] In addition to acquiring the truck, police also purchased a reflective jacket identical to that worn by Mr. Bally on December 15, 2014. They replaced the damaged bicycle with a stationary trainer at the approximate spot where they believed impact took place. An auxiliary constable, wearing the newly purchased jacket, mounted the trainer and peddled the bike in place. The LED light, the rear light, was removed from Mr.

Bally's bike and placed on the trainer, and set to its various modes as the police recorded their passes. RCMP conducted a number of runs along the highway, to and past the point of impact. To eliminate any artificial lighting from oncoming traffic, flaggers closed the highway. [ 57 ] In all, police completed and recorded nine runs. Several observations ensued. For example, Constable Grabb was surprised that the reflective jacket was not always as visible as expected when they came upon it.

Depending on the configuration of speed, faster or slower, and the setting mode of the rear light of the bike, the cyclist was either very visible or not so visible. [ 58 ] In the video, it appears quite dark, but Constable Grabb said to the natural eye it seemed lighter than the video camera portrays. [ 59 ] In cross-examination, Constable Grabb said this was the first time he had created such a demonstration as an aid to the Court, and while the pickup truck used was the same model, its accoutrements could only be similar.

It was impossible, of course, to re-create the view of a misaligned passenger side headlight. Constable Grabb also agreed with Mr. Marion that not only was the video dark, but the fog line at times was barely discernible or disappeared altogether. [ 60 ] Constable Grabb became the lead investigator on the file and, as a result, he had extensive dealings with Mr. Prad. The officer’s evidence regarding the demonstration was side tracked for a time, while he outlined his interactions with Mr. Prad. [ 61 ] He returned briefly to the demonstration evidence on the third day of the trial, November 23, 2016.

His evidence that day, fairly given, was that at one point in the demonstration he passed the lighted bicycle and stopped in a driveway down the road [I believe this to be the same driveway at which Mr. Prad stopped his vehicle after the collision.] Looking back to the point of impact, he sought to discern the bike light. His evidence was that he had to advance at least 30 feet from the back of the truck before he could see the light in the ditch and, as he pointed out, he not only knew where the light was supposed to be, but he was specifically looking for it. [ 62 ] I would simply point out that Mr.

Prad did not move anything like 30 feet from the rear of his truck after the collision. In addition, he did not have with him the means of illuminating the darkness beyond the rear of the truck. [ 63 ] Constable Grabb resumed his evidence in the trial proper, following the Ruling on the admissibility of the demonstration video. As the lead investigator, he, along with Constable Biollo, attended Mr. Prad's residence on the afternoon of December 17, 2014. They met with Mr. Prad's son, Scott, whom they described as friendly, amicable, and eager to assist. They examined the Ford F350 pickup truck.

Scott Prad informed the police that while he was the registered owner of the truck, his dad often used it to travel to and from work. Police seized the truck and various broken parts that had been disposed of in garbage cans. [ 64 ] Before Constable Grabb and his partner got back to the detachment, Constable Biollo received a call from the accused that he put on speaker. [ 65 ] Mr. Prad was quite upset, but he agreed to attend the RCMP detachment the next morning. Upon informing his supervisor of this development, Constable Grabb was instructed to return to the Prad residence and arrest Mr. Prad.

Constable Grabb did so, and chartered and warned Mr. Prad, who declined the opportunity to consult counsel. [ 66 ] By the time Mr. Prad got back to the detachment, it is clear that he was very, very, upset and remorseful having learned that he might have been involved in a fatal accident. [ 67 ] The interviews with Mr. Prad were video recorded and transcripts later prepared. Both the videos and the transcripts were entered as exhibits during the course of trial. To summarize the lengthy, often very emotional interviews, suffice it to say that Mr. Prad was distressed and overwrought.

The police interrogator is very skilled but, no matter how skilled, he was never able to shake Mr. Prad from his adamant assertion that he thought he hit a deer. Constable Grabb introduced the suggestion that Mr. Prad accidentally hit Mr. Bally and then "panicked", and left the scene leaving Mr. Bally dead or injured on the side of road. That, of course, is one of the theories of the Crown in this case. [ 68 ] Watching the proceedings unfold at the detachment, I believe any jury would be instructed not to confuse Mr. Prad's obvious distress and his remorse that he was the cause of Mr.

Bally's death, and conflate that fact with a guilty mind. Sitting without a jury, I must instruct myself accordingly. [ 69 ] It is important to understand the difference between Mr. Prad's dawning realization that he was the cause of the death of another human being, feeling overwhelming guilt about that fact, and mistaking it as proof that he was aware that he hit a cyclist, not a deer, and

that he left that cyclist in the ditch on the side of the road, fleeing to escape civil or criminal responsibility. [ 70 ] During the interviews, carried out over a number of hours, Mr. Prad is emotional, guilt ridden, and breaks down and cries at various points. At no time does he resile from his narrative that he thought he hit a deer, got out of his truck to have a look, but could not hear or see anything. [ 71 ] Mr. Prad told police that after he went to the rear of his vehicle to see if he could see the animal he thought he hit, he went to the front of his pickup and examined the damage.

He said that he was then anxious to get home. The interrogator suggests this was a result of Mr. Prad's knowledge that he hit a cyclist and wanted to escape. Mr. Prad never adopts this suggestion, and he does explain his anxiety in his own evidence given at trial.

I will refer to that evidence in due course. [ 72 ] In cross-examination, Constable Grabb concedes that it was he who introduced the word and the concept of ‘panic.’ That is not surprising, considering police were investigating what they thought was a hit-and-run fatality, and their theory was that the driver of the suspect vehicle panicked and fled. [ 73 ] Constable Biollo related the phone call he received from Mr. Prad while returning to the detachment in his cruiser. Mr. Prad, by that time, had spoken to his son and was aware that he may have been involved in a fatal accident. Mr. Prad was crying and upset.

He told the police officers that he knew he hit something, saw something brown, and presumed it was a deer. He stopped to investigate, saw and heard nothing, and assumed the animal was dead. He explained to Constable Biollo that he was not hiding anything, that he cleaned up the damage to his truck, and drove it to work the next morning. I will have much more to say about Mr. Prad's post-accident behaviour shortly. [ 74 ] In any event, Mr. Prad was aware at the time he had the telephone conversation with Constable Biollo, that the accident in which he had been involved had taken the life of Mr.

Bally. [ 75 ] Corporal Thompson, the traffic accident analyst, prepared a reconstruction report that was entered as Exhibit 26 in the trial. The corporal did not arrive at the scene of the accident until 00:35 hours on December 15, 2014. The highway remained open to traffic from the time of the impact until the southbound lane was closed by one of the attending officers several hours later. The issue as to how much the debris field was damaged or moved by passing traffic while the road remained open was an issue very much alive in this trial. [ 76 ] Corporal Thompson knows his business.

He did exemplary work, and Exhibit 26 is helpful to the Court, especially when it came to marking and photographing the debris field as he found it. [ 77 ] His conclusion is found at page 22 of his report: Considering all of the above contingencies, it was consistent with the cyclist having been eastbound . . . [ 78 ] Most of us who live around here view the highway as north and south. At that particular junction, it was eastbound. . . . it was consistent with the cyclist having been eastbound, on the eastbound paved shoulder, at 8443 Highway 19A (Island Highway South).

Vehicle 1, the Ford F350 pickup truck was also eastbound approaching that location. Vehicle 1 travelled down the short eastbound straight-of-way and, for unknown reasons, failed to negotiate a counter-clockwise curve at the collision scene. Vehicle 1 crossed the white fog line and the right rear corner of the vehicle struck the left rear of the bicycle. The bicycle was instantly accelerated to nearly the speed of the vehicle. The driver of Vehicle 1 made a steering input to the left, and the right front tire of the truck created the tire mark identified above.

The bicycle's rear brake contacted the grey plastic valence below the front bumper. The seat contacted the headlight assembly, and the rider's lumbar area contacted the leading edge of the hood and front fender. As the cyclist's body was accelerated by the vehicle, his upper body was thrown backward and his helmet contacted the rear of the hood.

As Vehicle 1 swerved to the left, the cyclist and bicycle continued off road right and were thrown, tumbled into an unknown manner as to their points of rest at the bottom of the eastbound ditch. [ 79 ] As to the speeds of the vehicle at impact, Corporal Thompson says at page 23: First, I consider the area of impact and the debris field to calculate a range of speeds for Vehicle 1. I used a baseline of 80 kilometres an hour for Vehicle 1, consistent with the posted speed.

However, given the actual speed of the vehicle was not known, it was necessary to consider what effect a change in speed would have had on the fall distance of the piece of plastic.

Additional calculations were performed using a range of speeds from 70 to 90 kilometres per hour. [ 80 ] He does a series of mathematical calculations and says: Applying these distances on a scale drawing, it becomes clear that 8.16 metres is too far into the collision scene, and, therefore, the vehicle was unlikely to have been travelling at 70 kilometres per hour. [ 81 ] Had the piece of plastic, upon which he based his conclusion, been moved in any way during the several hours this highway remained open, that would affect the officer's final opinion.

Based on where he found it, he said: It was, therefore consistent the vehicle was travelling at a speed of 80 to 90 kilometres per hour at the time of impact. It must be understood that this calculation does not take into account the possibility that the piece of plastic debris may have bounced after striking the ground, prior to coming to rest. If this were the case, then the lower speed of 70 to 80 kilometres per hour could be more appropriate. As such, this 80 to 90 range is only an approximation at this point. [ 82 ] I believe the Crown adopted the lower speed in the course of submissions.

[ 83 ] As to the bike light, Corporal Thompson testified that he could not find it from a distance without assistance. That is not at all surprising. The light is not discernible in most of the photographs taken from a position standing south of the debris. There is one photograph taken from a distance, there is no evidence of how far away, in which the light does appear. It is very difficult to pick out. [ 84 ] Photographs taken north to south from above the point of impact, showing the debris field in the foreground, do show the faint red light.

It should be noted that the light was actually pointing partially skyward at this point, even though the bike was on its side. The conclusion was that the light rotated from pointing rearward to the side of the bike because of the impact. Corporal Thompson said the seat post, to which the bike light was attached, rotated 30 degrees. [ 85 ] Corporal Thompson testified that the highway remained open for approximately four hours before he arrived. He acknowledges that the debris field may have been disturbed in the interval.

My note of his evidence on Day 4, November 24, 2016, is that he said, There is no clear indication of where the impact took place. The origin of the impact [as he recreated it] is a learned guesstimate. [ 86 ] The reconstruction analyst places the impact between the pickup truck and the bicycle over the fog line. The reason for this placement is a tire mark this expert associates with the collision. Corporal Thompson explained that a tire, under heavy load from a steering input, will actually bring oils up from the asphalt and leave a discernible tire mark.

This tire mark was still visible four hours after the impact, despite the fact that it had been raining. It is on this basis he concludes the tire mark was at the commencement of the debris field and marks the spot of the collision over the fog line. [ 87 ] Corporal Thompson also demonstrated how the impact deformed the right-hand passenger front corner of the pickup truck and how it deformed the bicycle itself. He showed that the bicycle fit into that formation like a piece of a jigsaw puzzle. From his examination of the damaged headlight, it was his view that Mr.

Prad had his high beams on at the time of impact. [ 88 ] Asked by Crown about other alternatives, Corporal Thompson did say that had the bike turned in front of the truck just before the impact, the debris field would still be consistent with his findings that impact occurred over the fog line. [ 89 ] Finally, Corporal Thompson noted that he was involved in the video demonstrations. He placed the bike rider in various positions along the Old Island Highway, based on his conclusion regarding the point of impact. [ 90 ] Closely questioned by Mr.

Marion in cross-examination, Corporal Thompson conceded that some of the debris field could have been damaged or moved by passing traffic.

He remained convinced, however, that there was so much debris in the location he fixed that, in conjunction with the tire mark, he was confident that his "guesstimate" as to the point of impact was reasonably reliable. [ 91 ] Corporal Thompson also assured the Court that his conclusions, as set out in the report and as provided in his evidence, were independent of the demonstration runs. [ 92 ] Sergeant Duncan, formally of the Courtenay detachment and now posted to Yellowknife, was also involved in this investigation. The sergeant has been with the RCMP for 39 years, and with forensic investigations since 1999.

He is now the officer in charge of the Yellowknife detachment. Needless to say, he is a highly experienced and highly qualified individual in this line of work. [ 93 ] Sergeant Duncan helpfully brought the actual bike into the courtroom. Even more helpfully, he conducted a demonstration of the bike's rear light, putting it through its various modes. The bike had a small, red-lensed, seat-post-mounted light that could be set to four different modes. The first mode, to which it was set on the night of the accident, was simply an ordinary light.

In comparison to the other three modes, it did not seem to stand out particularly well. [ 94 ] The second mode triggered a three-point triangular LED enhancement within the red lens that stood out. The third mode was an even brighter three-point LED triangular enhancement that really stood out. Finally, the most effective mode was the fourth where the light could be set to flash. There is no doubt that the rear lamp on the bicycle at the time of the collision was set to its least effective visual mode. [ 95 ] That is confirmed by Sergeant Duncan's own evidence.

He advised that when he attended the scene of the accident, he could not see the light on the bike, although it was on its side and still illuminated and pointed in a direction that could be seen. [ 96 ] He had to stop his vehicle, get out, and look back to find it, and was specifically looking for that light. As I say, he is not the only officer that had difficulty locating the bike light. [ 97 ] Dr. Orde, the forensic pathologist, was called to describe the fatal injuries sustained by Mr. Bally, the most significant of which seemed to be an extensive brain injury.

It would appear the collision caused such catastrophic injuries to Mr. Bally that he was likely unaware that he had been struck by a motor vehicle. [ 98 ] Constable Nowak was the final Crown witness. He works North Island Traffic and attended the scene, arriving at 12:31 a.m. He also assisted Corporal Thompson. On foot, approaching from the north, not the south it should be noted, this officer was able to see the bike 200 feet away. I am not sure what to make of that evidence, given my own observations of the bike light, and the observations of his brother officers who said it was most difficult to see.

Perhaps the constable's estimate of the distance is simply wrong. I do not rely upon it. DEFENCE EVIDENCE [ 99 ] Timothy Prad gave evidence on his own behalf. He is 56 years of age, has lived in the Comox Valley for 25 years, and has been gainfully employed at RCAF 19 Wing Comox since 1991. His driving record is relatively minor: two speeding tickets, 25 and 15 years ago, and a more recent ‘impeding traffic’ ticket for driving too slowly in the passing lane on the Inland Island Highway. Mr.

Prad lives with his son in Bowser, admits he drives more slowly than other people, and tends to drive close to the fog line along the side of the road.

[ 100 ] Over his years of driving, he has struck a number of deer, three to be precise, and he hit a deer with his pickup truck only one month before the fatal accident. In fact, the repair from this latter strike had not been perfected when he struck Mr. Bally. The right front headlight had an amateur repair, involving a folded chip bag. The right front passenger side headlight was illuminated but misaligned, at the time of the fatality. [ 101 ] Mr. Prad loaned his pickup to his friend Cindy Perry the night before the accident so she could travel down Island to visit a friend.

He confirmed her evidence that upon her return to Bowser on December 15, 2014, he drove to a local store to purchase cigarettes and beer. When he returned to his home, he consumed one beer, made some coffee, and then drove Ms. Perry to her home. [ 102 ] During the drive, Ms. Perry complained to Mr. Prad that he was drifting right. He acknowledged that he activated his turn signal far in advance of the road onto which he intended to turn to complete the journey to Ms. Perry's home. [ 103 ] At or just before the impact with Mr. Bally during his return to Bowser, Mr.

Prad stated that he was travelling between 70 and 80 kilometres per hour, which is consistent with the impact speed estimated by the reconstruction expert. The posted speed on that

section of the Old Island Highway is 80 kilometres per hour. [ 104 ] For reasons not entirely clear, something on his left drew his attention and he looked left toward the lights of the mill. It is not clear either how long he took his eyes off the road in front of him, but it was long enough that he came upon Mr. Bally without seeing him. [ 105 ] Mr. Prad said he heard a thump and thought he saw something brown flash by. As a result, when it was safe to do so, he stopped his truck in a driveway and got out of the vehicle to see what had happened. He walked to the rear of his vehicle and he heard and saw nothing.

He did not have a flashlight to allow him to explore further back into the pitch black darkness. This caused him, he says, to put one in his vehicle the next day, where the RCMP found it when they seized the truck. [ 106 ] In any event, Mr. Prad went to the front of his truck to examine the damage. He was concerned that the collision may have damaged his radiator and he was anxious to get the truck back to his home as soon as possible. [ 107 ] At home, he removed as many of the damaged parts as he could and disposed of them. Afterward he had the text exchange with Ms.

Perry to which I have already referred. [ 108 ] There were two vehicles available to Mr. Prad, the pickup truck and a small sedan. At 6:10 a.m. the next morning, he drove the damaged pickup truck without seeming hesitation. On his way to work on the Old Island Highway, traffic, including Mr. Prad, was confronted by a police roadblock and directed onto the Inland Island Highway. Mr. Prad used that route, and once into Courtenay he drove his usual route up Ryan Road, past the RCMP detachment, and on to RCAF 19 Wing Comox.

On the base, he made no attempt to hide the truck, parking it in a public space. [ 109 ] At 4:30 p.m., he left work to return home. The next day, he and his son traded vehicles, so his son could transport some propane tanks. In the interval, he became aware that there had been a fatal accident on the Old Island Highway on December 15th and police were looking for a white pickup truck. His truck is red or burgundy. [ 110 ] In response to a question posed by Mr. Marion, Mr. Prad denied seeing Mr. Bally, a reflective light, or a reflective jacket.

He denied crossing the fog line or making any steering inputs immediately before or immediately after impact. While that may have been his impression, that would not appear to be the case. I am of the opinion that he did cross the fog line. [ 111 ] Mr. Boccabella for the Crown put Mr. Prad through a lengthy and rigorous cross-examination. The first thing Mr. Prad conceded was that he was uncertain whether he crossed the fog line, and rather than deny outright that he may have made a steering input, he stated that he did not recall making one. I expect those responses are accurate and truthful. [ 112 ] Mr.

Prad told the Court that he had one beer before he drove Ms. Perry home. He neglected to inform the RCMP of that fact when he was being interviewed because, he says, he thought it made no difference since it was one beer consumed some time before the accident. [ 113 ] As to the moments just before impact, he said he turned his attention 90 degrees to the left and looked through the driver's side window, taking his eyes off the road. He agreed with Crown's suggestion that the turn of his head might have caused him to leave his lane. [ 114 ] Mr.

Prad gave his evidence in a calm and straightforward manner, until it was suggested to him that he not only knew he hit a cyclist, but that he left him on the side of the road. Mr. Prad was passionate and adamant in his response and exclaimed, "If I hit a guy, I wouldn't leave him on the side of the road!" [ 115 ] As to the length of time he took his eyes off the road to look left, Mr. Prad could not be of assistance.

He said he had no recollection of the time it took and could not estimate. [ 116 ] After the accident, he was anxious to get home but, he contended, the word "panic" was introduced during the interrogation by Constable Grabb and it is not a descriptive word that he was ready to adopt. [ 117 ] He also said he had no issue with Corporal Thompson's positioning of the point of impact, and he agreed that he had his high beams on prior to the collision. [ 118 ] Mr.

Prad told the Court that he was able to safely park about 100 metres from the impact and also agreed that, in hindsight, perhaps he ought to have walked further back to investigate, but had no means of illumination. [ 119 ] George Lenz is the chief of a local volunteer fire department in the area. He told the Court that his firefighters might have to

respond to between 40 and 70 callouts involving motor vehicle accidents during a year. Many of these accidents involve collision with deer. He testified that over the years, he has observed “hundreds of deer carcasses,” lying at the side of our roads. These were deer killed in motor vehicle accident collisions. He himself hit one only a few years back. [ 120 ] I should like to insert a comment here before I review submissions.

Anyone who has lived in the Comox Valley, which encompasses the City of Courtenay, the Town of Comox, the Village of Cumberland, as well as the rural and semirural communities at either end of the Valley, will appreciate how ubiquitous deer are in these environments. [ 121 ] As someone who has lived here for 36 years, I am prepared to take judicial notice of that fact. Deer in this area are unpredictable. You are as likely to find them wandering the downtown streets of Comox or in your backyard as you are grazing in the ditches along the roads and highways or indeed crossing those roads.

I do not find the evidence of Mr. Lenz an exaggeration as to the number of deer and motor vehicle collisions to which his fire department responds yearly in the one small area of the Valley his volunteer fire department covers, or the number of deer killed in motor vehicle collisions that he personally has observed lying on our roads. In my experience, this is credible evidence. [ 122 ] Before turning to submissions I would like to add another unrelated comment.

It ill behoves me, in the course of these reasons, to leave the impression that I am, in any way, victim blaming as a result of some of the comments made in this judgment about the cyclist's visibility. In my view, Mr. Bally took adequate precautions to be seen and he ought to have been seen by anybody driving with proper due care and attention. SUBMISSIONS - DEFENCE [ 123 ] Defence counsel, Mr. Marion, in his submission invites me to focus on the evidence of Ms. Perry, called by Crown, and to find her credible. In fact, I do. I view her as an independent witness.

She was called by the Crown and obviously did not want to be here. In addition, it would seem her friendship with Mr. Prad is either strained or at an end. [ 124 ] Mr. Marion also pointed out how many of the witnesses in this case, including police, had, over the course of their driving experience, collided with deer. By my count, four of these witnesses, including one police officer, had among them eight deer collisions. Mr. Prad himself accounts for three, and he thought the collision one month before the fatal accident was number four. [ 125 ] Mr. Marion emphasised weather conditions as a factor.

It is true that it had been raining that night with some fog. Conditions were very dark at that juncture of the highway where the collision took place. It is also the case that the bike light was not in its optimum mode. As well, one of the officers noted, on one of the video recorded passes, the jacket Mr. Bally was wearing was not as reflective as he thought it would be. [ 126 ] Defence counsel has a cogent argument regarding the post-accident behaviour of his client, which he says is consistent with innocence. Mr. Prad, almost immediately after the accident, sent a text message to Ms.

Perry in which he related his collision with what he thought at the time was a deer. More importantly, Mr. Prad made absolutely no attempt to hide the telling damage to his truck. Aside from cleaning up and disposing of broken pieces, he had no compunction about driving his truck in public not 12 hours after the collision. He encountered a police roadblock driving his damaged truck. He drove it past the police station. He parked it in a public lot at the airbase, and he drove it home after work.

These actions do not seem to me to be the actions of a person with a guilty mind. [ 127 ] That said, I do not agree with Mr. Marion, nor did his client in cross-examination, that police did not reasonably establish a point of impact. In my opinion, Crown established that it likely took place over the fog line. Mr. Marion did his level best to challenge that evidence, arguing that it was not safe to draw that conclusion because some of the debris might have been disturbed.

I believe the tire mark showing the steering input is determinative of the issue, although its positioning is not in itself determinative of the offence of dangerous driving. [ 128 ] I agree with Mr. Marion that his client came across as a somewhat compliant individual who is not particularly sophisticated, and who was emotional and remorseful when he accepted that he was the cause of Mr. Bally's death. The one thing Mr. Prad is not, it would seem to me, is a sufficiently cold and calculating character capable of carrying on his normal life with knowledge that he had killed or injured someone.

That kind of behaviour does not seem to fit within his emotional makeup. SUBMISSIONS - CROWN [ 129 ] Crown counsel, of course, offered a much different picture of Mr. Prad. Mr. Boccabella argues that Mr. Bally was there to be seen, wearing a reflective jacket with a lit red light on his bike. That is true. [ 130 ] He suggests that if Mr. Prad, after impact and after stopping his vehicle, had gone anywhere other than to the immediate rear of his pickup, he would have seen the reflective lamp in the ditch some 100 metres away. Crown is critical of Mr. Prad for not doing a more extensive investigation. [ 131 ] Mr.

Boccabella is correct that had Mr. Prad known he struck a person and left the scene with intent to escape civil or criminal responsibility, he should be found guilty on Count 1. [ 132 ] Crown wants the Court to conclude that the steering input, as reflected by the tire mark, was made in advance of the collision. Mr. Boccabella says it is open to me to infer Mr. Prad actually saw Mr.

Bally on his bicycle just before impact, knew he struck him and knew he must have been injured, but nonetheless left him on the side of the road with intent to escape criminal or civil liability. [ 133 ] The steering input evidence could be considered somewhat ambivalent in that the debris field indicates that it was made at or just after impact. I do not find this evidence determinative of Mr. Prad's knowledge that he saw and tried to avoid Mr. Bally just before impact. I should also note that in the end, Mr. Prad did not deny that he made a steering input.

It may simply have occurred as a result of the fact that he struck something. Quite different inferences may be drawn if it is determined the input took place before or after impact.

CROWN SUBMISSIONS (CONTINUED) [ 134 ] Mr. Boccabella, too, was critical of Mr. Prad's misleading police by claiming that he had nothing to drink when he had actually consumed a beer. Crown suggests that Mr. Prad also misled or omitted the reason the pickup truck was registered in the name of his son. The inference Crown wants me to draw is that Mr. Prad dissembles and is misleading and untruthful about central matters in this case. [ 135 ] Crown also suggests that Mr. Prad changed his version of events, and the distraction that caused Mr. Prad to take his eyes off the road is not "a bona fide memory." Mr.

Boccabella points out that Mr. Prad had driven that road hundreds of times. He was well aware that the mill lights would appear in the distance to his left as he travelled that portion of the highway and entered the curve. As a result, says Crown, if there was something truly unusual that drew his attention away from the road, Mr. Prad should have a distinct memory of it and he does not. [ 136 ] Because Mr. Boccabella is an eminently fair prosecutor, he does acknowledge that Mr. Prad made no attempt to hide the fact that he had been in an accident; that Mr.

Prad confirmed that fact almost immediately afterward via text; and that Mr. Prad later made no attempt to hide the truck. [ 137 ] While Mr. Prad's actions are not consistent with someone who had a guilty mind, the issue of wilful blindness and general credibility remain alive. The presumption of s. 252 of the Criminal Code is applicable. THE LAW [ 138 ] It is now time to look at the Criminal Code sections covering these offences and applicable law. [ 139 ] The dangerous driving provisions of the Criminal Code are found at s. 249(1) : 249(1) Every one commits an offence who operates (

a) a motor vehicle in a manner that is 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. [ 140 ] The

section governing failure to remain is found at, s. 252(1.3) (

b) of the Criminal Code : 252(1) Every person commits an offence who has the care, charge or control of a vehicle, vessel or aircraft that is involved in an accident with (

a) another person, (

b) a vehicle, vessel or aircraft, or ... Offence involving bodily harm or death

(1.3) Every person who commits an offence under subsection (1) is guilty of an indictable offence and liable to imprisonment for life if (

a) the person knows that another person involved in the accident is dead; or (

b) the person knows that bodily harm has been caused to another person involved in the accident and is reckless as to whether the death of the other person results from that bodily harm, and the death of that other person so results. Evidence

(2) In proceedings under subsection (1), evidence that an accused failed to stop his vehicle, vessel or, where possible, his aircraft, as the case may be, offer assistance where any person has been injured or appears to require assistance and give his name and address is, in the absence of evidence to the contrary, proof of an intent to escape civil or criminal liability. [ 141 ] Section 252(2) is called the presumption

section and it requires rebuttal. I will explain that in a moment. [ 142 ] Not surprisingly, over the years, these sections of the Criminal Code have been thoroughly canvassed by the courts of this land. As a result, there are many decided cases. In any review of the case law, it must be kept in mind that each case is unique on its particular facts. The Court must consider the applicability of the law as coded and decided, to the facts as found at trial. [ 143 ] The case law provides a review of the principles to be applied.

It is useful as a guide for trial judges who have occasion to apply those principles to a case with its own particular facts. [ 144 ] With that in mind, I now turn to the law as it applies to a case of this nature. Count 2 [ 145 ] The starting point is the statement of Mr. Justice Cory, as he then was, in R. v. Hundal , [1993] 1 S.C.R. 869 [sic] : Negligent driving can be thought of as a continuum that progresses, or regresses, from momentary lack of attention giving rise to civil responsibility through careless driving under a provincial Highway Traffic Act to dangerous driving under the Criminal Code .

[146] There have been many decided cases since these words were written. To date, the leading case in Canada is R. v. Beatty, 2008SCC 5 , [2008] 1 S.C.R. 49. [147] The British Columbia Court of Appeal considered and applied Beatty in a case called R. v De Ciantis, [2011] B.C.J. No. 2081. [148] The most recent decision provided to me is R. v.

Roy, 2012 SCC 26 , [2012] 2 S.C.R. 60, in which the principles set outin Beatty are confirmed. [149] In Roy, from the headnote, in part: Dangerous driving causing death, a serious criminal offence punishable by up to 14 years in prison, consists of two components: prohibited conduct — operating a motor vehicle in a dangerous manner resulting in death — and a required degree of fault — a markeddeparture from the standard of care that a reasonable person would observe in all the circumstances.

However, because driving is aninherently dangerous activity, the trier of fact must not infer simply from the fact that the driving was, objectively viewed, dangerous,that the accused's level of care was a marked departure from that expected of a reasonable person in the same circumstances. The faultcomponent ensures that criminal punishment is only imposed on those deserving the stigma of a criminal conviction. Determiningwhether the fault component is present may in turn be done by asking two questions.

First, in light of all of the relevant evidence, woulda reasonable person have foreseen the risk and taken steps to avoid it if possible? Second, was the accused's failure to foresee the riskand take steps to avoid it, if possible, a marked departure from the standard of care expected of a reasonable person in the accused'scircumstances?

The distinction between a mere departure, which may support civil liability, and the marked departure required forcriminal fault, is a matter of degree, but the trier of fact must identify how and in what way the driver went markedly beyond merecarelessness. [150] The Beatty case is extensively canvassed in De Ciantis. [151] The facts in that case, abbreviated here, are found at pages 3 and 4 of the judgment. The accident occurred at 7:30 p.m. Twopedestrians and an individual on a motor scooter were travelling on the side of the road in the same direction as the accused.

The scooterhad two red reflector lights on the back. The night was clear and cold. It was not raining. The accused made a number of lane changeson the multi-lane highway prior to colliding with these three individuals. Entering the final lane change, he did a shoulder check, oversteered, and struck the individuals, one of whom died. The accident reconstruction expert estimated the accused's speed at 81 kilometresan hour. There was no indication of braking. At the time of the collision, his tire was 14 inches over the fog line. [152] Mr. De Ciantis was convicted at trial and the verdict overturned on appeal.

In the headnote, the Court of Appeal said: The trial judge erred in ascribing moral blameworthiness to the accused at the criminal end of the negligence spectrum . . . herconclusion that his driving was a marked departure from that of a reasonable person was unsupported by the evidence.

While theaccused's driving was not prudent and was ill-judged, it was not such that it should attract criminal liability. [153] In De Ciantis, at paragraphs 32 and 33, our appellate Court referred to the comments of Madam Justice Charron in the SupremeCourt decision of Beatty: [32] Madam Justice Charron set out the test for the actus reus at para. 43 [of Beatty]: (

a) 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". . . . [33] Madam Justice Charron elaborated on certain aspects of this test.

She emphasized that the consequences of the driving were notto be taken into account in determining whether the driving was dangerous. She said, at para. 46: As the words of the provision make plain, it is the manner in which the motor vehicle was operated that is at issue, not the consequenceof the driving. The consequence, as here where death was [concerned], may make the offence a more serious one under s. 249(4), but ithas no bearing on the question whether the offence of dangerous operation of a motor vehicle has been made out or not. Again, this isalso an important distinction.

If the focus is improperly placed on the consequence, it almost begs the question to then ask whetheran act that killed someone was dangerous. The court must not leap to [this] conclusion about the manner of driving based on theconsequence. There must be a meaningful inquiry into the manner of driving. [Emphasis in original] [154] In De Ciantis, the Court talks about the mens rea of driving at paragraph 34: [34] The fault element of dangerous driving has a constitutional component, which is to ensure that the morally innocent are notpunished.

A civil standard of negligence, which is concerned primarily with the apportionment of loss, is not a constitutionallycompliant fault element for the offence of dangerous driving (or any negligence-based offence). Constitutional compliance is achievedby imposing a fault element of a "marked departure" from the standard of the reasonable person. . . . [There] is an objective faultelement which takes into account only the capacity of the accused person. . . [155] The court returns to Charron SCJ at paragraph 35 of De Ciantis. This is a case preceded by Beatty. Madam Justice Charronsays, in part: . . .

First, there must be a "marked departure" from the civil norm in the circumstances of the case. A mere departure from the standard

expected of a reasonably prudent person will meet the threshold for civil negligence, but will not suffice to ground liability for penal negligence. [Emphasis in original] [ 156 ] At paragraph 37, our Court then notes in relation to Madam Justice Charron's comments: . . . driving is an automatic and reflexive activity, there will necessarily be departures from the standard expected of a reasonably prudent driver.

Although some of these departures may even pose a danger to other users of the highway, they may still fall short of the "marked" departure required to substantiate the offence of dangerous driving. . . [ 157 ] They quote again from Beatty (at paragraph 34 ): . . . Even the most able and prudent driver will from time to time suffer from momentary lapses of attention. These lapses may well result in conduct that, when viewed objectively, falls below the standard expected of a reasonably prudent driver.

Such automatic and reflexive conduct may even pose a danger to other users of the highway . . . [ 158 ] At paragraph 38 of De Ciantis , the Court notes Madam Justice Charron's test for " mens rea ": The trier of fact must also be satisfied beyond a reasonable doubt that the accused's objectively dangerous conduct was accompanied by the required mens rea .

In making the objective assessment, the trier of fact should be satisfied on the basis of all the evidence, including evidence about the accused's actual state of mind, if any, that the conduct amounted to a marked departure from the standard of care that a reasonable person would observe in the accused's circumstances.

Moreover, if an explanation is offered by the accused, then in order to convict, the trier of fact must be satisfied that a reasonable person in similar circumstances ought to have been aware of the risk and of the danger . . . [ 159 ] These are the considerations of which I must be cognizant when applying these principles, statements, and directions from higher courts to the case at bar, in particular, as it relates to Count 2. [ 160 ] I have already canvassed the nature of Mr. Prad's general driving ability. He is described as a "pokey driver" who tends to drift to the right to hug the fog line.

Neither speed nor alcohol is a factor in this case. Mr. Prad's attention was drawn to his left and he looked left while entering a curve. How long he looked through his driver's side window before drifting over the fog line and striking Mr. Bally cannot be established with any certainty. It was long enough to prevent him from noticing Mr. Bally in time to avoid him. That failure to observe the cyclist may have been caused by a brief glance or a glance lasting a couple of seconds. The latter seems more likely, but there is no way to tell. Mr. Prad said he simply did not see Mr. Bally and on the R. v.

W.(D.) analysis, to which I will refer to more extensively in these reasons, and considering the condition of the road and the weather that night, I am of the view that Mr. Prad’s driving does not climb the scale to amount to dangerous driving as defined in the Criminal Code and decided cases. [ 161 ] Within the continuum as set out by Mr. Justice Cory, from civil negligence through to dangerous driving, Mr. Prad's conduct would likely amount to driving without due care and attention under the Provincial Motor Vehicle Act . Even Mr. Marion concedes that is so. However, that

section of the Motor Vehicle Act was not charged, nor is it a lesser included offence within the dangerous driving provisions of the Criminal Code . [ 162 ] What our Court of Appeal said in De Ciantis is applicable here: the driving may not have been prudent but it was not such that it should attract criminal liability. It is safe to say, from time to time, drivers are apt to take their eyes off the road should something distract them. There may well be circumstances that by doing so it would amount to a ‘marked departure’ and, therefore, constitute dangerous driving under the Code .

In my respectful view, this is not one of those circumstances. [ 163 ] I find Mr. Prad not guilty of dangerous driving as set out in Count 2. Count 1 [ 164 ] Commonly called the “hit-and-run” provision, Count 1 is more problematic. Crown says Mr. Prad was aware that he struck a human being, had to know that the person was dead or injured, failed to render assistance, and left the scene of an accident to avoid criminal or civil liability. [ 165 ] Crown provided the case of R. v. Basra , 2015 BCSC 1075 .

The facts of that case are quite different, but it contains a useful review of the considerations that go into an s. 252 “wilful blindness” analysis. [ 166 ] Briefly, Mr. Basra, who was a suspended driver, was driving his date's car when he struck and killed a person. The Court found, in the particular circumstances of the case, that the accused was aware of the possibility that he had collided with a person, but chose not to investigate in order not to find out. [ 167 ] It should be noted that this conclusion was very much based on findings that the accused and his passenger were not credible at the trial.

In addition, suspicious activities of the accused and his date post-accident contributed to that finding. [ 168 ] In Basra , Crown did not contend that the accused knew he was in an accident causing death or injury, or that Mr. Basra saw, or ought to have seen, the person he hit. The position of the Crown was that the accused was wilfully blind in the circumstances. [ 169 ] Mr.

Justice Verhoeven in Basra says at paragraphs 37 and 38 as follows: [37] As noted, the Crown relies upon mens rea based upon wilful blindness, in respect of the first element of mens rea . [38] The concept of wilful blindness in this context was neatly summarized by Mr. Justice Grist in R. v. Harrison , 2007 BCSC 1801 (British Columbia Supreme Court): [37] In my view, the element of knowledge accompanying s. 252(1) with respect to involvement in an accident can be satisfied by the

accused exhibiting wilful blindness towards what has been struck. In R. v. Sansregret, (SCC), [1985] 1 S.C.R. 570,wilful blindness was defined as a quality different from recklessness. It is where a person is aware of the need to inquire, but makes noinquiry because he or she does not want to know the truth. [170] Justice Verhoeven found that while Mr. Basra did not know exactly what he struck with his vehicle, he was wilfully blind.

Mr.Basra hit something, it was a major impact, and he had an obligation to investigate in the circumstances he found himself. [171] There can be no uncertainty about this - a person who knows or suspects that he hit another human being is required to stop andrender assistance. That does not mean one must do so in all circumstances. One can easily postulate situational road and weatherconditions that would make it hazardous to the driver [and other users of the highway] to do so. There is no duty to investigate although,obviously, it would be prudent to do so in cases where that is possible.

I do not view the cases as setting out a duty. The question thatwill always hover over any accused when a human being is struck is “Was the subject driver wilfully blind?” Let us now examine thatessential question. [172] In the case at bar, Mr. Prad stopped his vehicle and got out. He investigated to this extent; he went to the rear of his pickup,listened and looked, but he had no ability to go beyond that in the circumstances he found himself. This was a dark winding highway,the weather conditions were adverse, and he had no ability to illuminate a search.

He did not see the illuminated bike light, but neitherdid others from that distance and they knew it was present and were looking for it. [173] The Court in Harrison concluded that, in the circumstances of that particular case, the accused was required to determine whatshe had hit. That is generally correct. However, one must give consideration to the particular circumstance in which the driver findsherself after a collision.

It seems to me the Court must examine the issue to determine whether said driver had the ability to make thatdetermination in the conditions prevailing at the time. [174] The Court in Basra concluded that the accused knew he had been in an accident that caused substantial damage to his date'svehicle. He was a suspended driver. He stopped his vehicle and switched places with his date. They then drove well away from theaccident scene and parked the car. At 1:00 a.m., Mr. Basra called a windshield repairman. This accident occurred in a highly urbanizedarea in the Lower Mainland. Mr.

Basra did not testify that he thought he hit an animal. [175] In the circumstances of that case, the Court, it seems to me, was justifiably critical of Mr. Basra's failure to investigate. Considering the suspicious activities undertaken by Mr. Basra subsequent to the accident and the fact his evidence at trial was found notto be credible, the Court found the accused guilty. [176] In response, defence provided R. v. Stanton. This was an appeal from a finding of not guilty on a charge under 252(1.3) of theCode. The circumstances in that case are eerily similar to the facts in the case at bar. The victim, Mr.

Hostetler, was cycling on a ruralroad at night when he was struck and killed by Mr. Stanton. The accused testified that he thought he hit a deer. Crown alleged Mr.Stanton knew he hit the cyclist or was wilfully blind to that fact. [177] At trial, the Court, on a W.(D.) analysis, found that Mr. Stanton had rebutted the presumption and acquitted. On appeal, theacquittal was upheld. At trial, the accused acknowledged that he was in a collision and that he left the scene. . . .

The only issue was whether he failed to stop with the intention of avoiding civil or criminal liability. [178] The trial judge said that the respondent's evidence raised a reasonable doubt: Applying R. v. W. (D.) . . . the trial judge found that the respondent's evidence rebutted the presumption in s. 252(2) because it raised areasonable doubt that "his intent was to escape civil or criminal liability" . . . . . .

The Crown submits that the . . . judge made three legal errors . . . failed to apply the doctrine of wilful blindness properly . . . appliedtoo restrictive a standard of "civil or criminal liability," . . . [and] too high a burden on the Crown with respect to intent. [179] The appellate judge said at paragraph 13: . . . [the trial judge] was entitled, on all the evidence, to find a reasonable doubt based on the respondent's testimony that he believed hehad hit a deer.

Her application of the doctrine of wilful blindness to the facts and her assessment of the respondent's credibility are, attheir highest, matters of mixed fact and law. [180] The issue of wilful blindness will include elements of the circumstances of the collision, including road and weather conditionspresent at the time. It should include a determination of whether there existed a realistic ability to investigate, and whether it was evensafe to do so in conditions present. A finding that the accused is credible is essential. That brings me to the case of R. v.

W.(D.), (SCC), [1991] 1 S.C.R. 742. [181] The facts of that Supreme Court of Canada decision are not important to this case. What is important, indeed essential, is thedirection the Court provides in assessing credibility. While Mr. Justice Cory in R. v. W.(D.) is dealing with a jury charge in the particularcase, a trial judge sitting without a jury must nevertheless so instruct himself or herself as directed by the Supreme Court of Canada. [182] Here is what Mr.

Justice Cory says the jury or trial judge must consider: In a case where credibility is important, the trial judge must instruct the jury that the rule of reasonable doubt applies to that issue. Thetrial judge should instruct the jury that they need not firmly believe or disbelieve any witness or set of witnesses. Specifically, the trialjudge is required to instruct the jury that they must acquit the accused in two situations. First, if they believe the accused.

Second, ifthey do not believe the accused's evidence but still have a reasonable doubt as to his guilt after considering the accused's evidence in thecontext of the evidence as a whole. [Emphasis in original]

[ 183 ] Justice Cory goes on to distil it this way: Ideally, appropriate instructions on the [case] of credibility should be given, not only during the main charge, but on any recharge [that was the problem they had to deal with]. A trial judge might well instruct the jury on the question of credibility along these lines: First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the [evidence] of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt . . . of the guilt of the accused. [ 184 ] In the case at bar, as Mr. Boccabella observed during the course of his submissions, the credibility of Mr. Prad is a significant issue when it comes to consideration of Count 1. [ 185 ] I have commented above on the manner in which Mr. Prad gave his evidence. In its context, it was generally believable.

Even after considering those aspects of his testimony with which this Court may have reservations, I am left with a reasonable doubt. [ 186 ] I certainly believed him during that dramatic moment in cross-examination when he exclaimed, adamantly, that he would never leave a human being that he struck on the side of the road. [ 187 ] I find the presumption in s. 252 of the Criminal Code has been rebutted. Mr. Prad did not know he had hit Mr. Bally, nor is there any reason to suspect that he did.

One might criticize the extent of his investigation afterward as cursory, but in all of the circumstances of the case, including the time, place, and conditions, without a source of illumination, and with his firm belief that he struck yet another deer, I am not persuaded that by leaving the scene of the accident he did so with the intent to escape civil or criminal liability. [ 188 ] I find Mr. Prad not guilty on Count 1. (REASONS CONCLUDED)