HER MAJESTY THE QUEEN - v. -, 2013 SKPC 85

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2013 SKPC 085 Date: May 13, 2013 Information: 24378881 Location: Esterhazy _____________________________________________________________________________ Between: HER MAJESTY THE QUEEN - and - MERVYN WILLIAM SHEWFELT Appearing: Mr. B. Stricker For the Crown Mr. C. M. Ozirny For the Accused Judgment D. C. Chow , J Introduction [ 1 ] The Accused herein, Mervyn William Shewfelt, stands charged with one count of dangerous driving causing bodily harm, contrary to section 249(3) of the Criminal Code .

The offence is alleged to have occurred on or about the 24 th day of June, 2011, at or near Esterhazy, Saskatchewan. [ 2 ] The trial commenced on January 10 th , 2013. Additional evidence was subsequently heard, and submissions made on

February 8 th , 2013, following which the matter was reserved for decision. Thereafter, on May 13 th , I acquitted the Accused, with written reasons to follow. Evidence [ 3 ] The Crown’s first witness was the Informant, Cst. Jesse Manley, who testified he was on duty June 24 th , 2011, and making his way back to the local detachment in Esterhazy when he came upon the scene of the incident. [ 4 ] He described the roadway as a straight, flat stretch of unpaved gravel, comprised of two traveling lanes, each more or less twelve feet in width, and flanked by a slight shoulder on either side.

Although the weather was sunny and clear when he arrived, Cst. Manley testified it had rained earlier, and the shoulders of the road were wet. [ 5 ] At the scene he observed an individual whom he later confirmed to be the Complainant, Kevin Romaniuk, strapped to a backboard and being loaded into an ambulance.

Also present were a group of onlookers, as well as the Accused and an unknown individual, parked in the oncoming lane. [ 6 ] Cst Manley also noted the presence of two beer cans, lying just meters away in the ditch. [ 7 ] The Accused’s vehicle was located approximately fifty meters from an intersection and oriented in the direction of the “man camp” located just outside of town. Cst.

Manley could not recall what the posted speed was on this segment of the roadway. [ 8 ] He examined the Accused’s vehicle, which he described as dirty and dusty and observed two handprints, located on the passenger side, upper fender of Mr. Shewfelt’s vehicle; no other damage was noted. [ 9 ] Cst. Manley testified he had the Accused accompany him to the police cruiser, where he interviewed Mr. Shewfelt, and took a statement from him. He described the Accused as shaken up and clearly upset. [ 10 ] Cst. Manley remained at the scene for approximately thirty minutes after the ambulance had departed.

Although he did not initially have occasion to interview the Complainant, he did subsequently speak with him at the hospital. There, he recalled, Mr. Romaniuk appeared confused and “out of it”; Cst. Manley noted the smell of alcohol on his breath, and the Complainant conceded having consumed a couple cans of Pilsner beer. It was his opinion that the Complainant was intoxicated. [ 11 ] Under cross examination, Cst.

Manley testified he had also noted repetitive speech and detected alcohol on the breath of some of the bystanders at the scene; it was his conclusion, based upon his observations, that a number of these bystanders were intoxicated as well.

By contrast, he had observed nothing to suggest that the Accused had consumed alcohol. [ 12 ] The Witness explained as well that he had taken photographs at the scene, but there had been some difficulty preserving those photographs, and they were not available for court. [ 13 ] He agreed with Defence Counsel that, while the Accused was polite and cooperative at the scene, many of the bystanders were angry and cursing at the Accused. [ 14 ] In the course of redirect, Cst.

Manley clarified that perhaps only two or three of the approximately six other individuals on scene were in his opinion, intoxicated, and he could not speak to the sobriety of the others. [ 15 ] The Crown’s next witness was Clifford MacIntosh.

[ 16 ] Mr. MacIntosh testified that on the date in question, he was travelling in his truck near the man camp situate at the west end of Esterhazy, Saskatchewan. Sometime around 5 or 6 pm, he noted approximately five or six pedestrians occupying the entire roadway. He also noted a taxi, which he described as a burgundy coloured minivan, approaching from the opposite direction. [ 17 ] The Witness stopped his truck and watched as the pedestrians began to make their way to the shoulder of the road, and form a single line.

While he could not hear what the Accused was saying, the Witness testified he could hear the pedestrians telling Mr. Shewfelt to “relax”, as they were getting out of the way. [ 18 ] As the last of these individuals was making his way from the traveled portion of the roadway over to the shoulder, he slapped the hood of Mr. Shewfelt’s taxi with his hand, and had words with the driver, at which point, Mr. MacIntosh testified he saw the Accused turn the taxi’s wheels, accelerate, and drive over the pedestrian.

He estimated the speed of the Accused’s vehicle at this point to be no more than five kilometers per hour. [ 19 ] Before getting out of his vehicle and rushing to the scene, Mr. MacIntosh gave his cell phone to his passenger and instructed him to call 911. At the scene, he found the Accused sitting in his taxi, which was in turn, still parked on top of the Complainant’s waist. The Accused remained in his vehicle for what the Witness estimated to be a minute or two, while he and others on scene yelled at Mr. Shewfelt to back the vehicle off of the Complainant.

According to the Witness, when the Accused finally did back up, and then exit his vehicle, he confronted the Complainant angrily and asked why Mr.

Romaniuk was in the roadway. [ 20 ] Within approximately ten minutes, he testified, an ambulance had arrived on scene, followed by the first police office a couple minutes later. [ 21 ] The Witness described the other pedestrians’ reaction as surprisingly calm, and it was his opinion that the Accused could have driven around the Complainant and other pedestrians safely. [ 22 ] Under cross examination however, he conceded having previously provided investigators with a written statement wherein, he suggested the other pedestrians on scene were screaming at the Accused. [ 23 ] He also agreed that the Accused’s vehicle had approached from the opposite direction at a reasonable speed, before slowing down and coming to a complete stop, that it would have been possible for the pedestrians to move to the other shoulder, in the circumstances, and agreed further that almost all of the other pedestrians were involved in the altercation with the Accused immediately prior to the incident with the Complainant.

Indeed, when asked why he stopped his vehicle rather than proceeding on, the Witness testified he wanted to watch the “altercation”. [ 24 ] The Crown next tendered one of the pedestrians, Jason French. [ 25 ] Mr. French is a resident of Saskatoon, but was employed and living in the Esterhazy area on the date in question. He is acquainted with the Complainant, but they are not close friends. [ 26 ] Mr.

French acknowledged having consumed approximately two beers before the incident, on June 24, 2011, but denied any recollection of the Complainant, or anyone else in their party, consuming alcohol. [ 27 ] He explained that the group, including himself and the Complainant had set off on foot from the man camp into the town of Esterhazy that day, and confirmed that they were walking each abreast so they could talk. [ 28 ] At some point, they noted a van approaching, and the group began making their way to the shoulder of the road.

The Accused’s vehicle eventually came to a stop in front of the Complainant, who had placed his hands on the vehicle’s hood. According to the Witness, the Accused was waiving his fist at the group; he denied seeing any of the pedestrians make similar gestures, or hearing them say anything to the Accused.

[ 29 ] He also noted the presence of Mr. MacIntosh’s vehicle, parked in the opposite lane, approximately fifteen to twenty feet away. [ 30 ] At this point, according to the Witness, he turned his attention away from the Complainant and the Accused’s van, which were behind him, and proceeded toward the shoulder of the road.

He heard what he described as a crunch and a scream, at which point he wheeled around and saw the van resting on top of the Complainant, with the front wheels pointed to the right. [ 31 ] According to the Witness, the Accused got out and made his way to the front of the vehicle to see what had happened. He described Mr. Shewfelt as appearing stunned and dumbfounded. Mr. French and others in the group yelled at the Accused to back the vehicle up, which he did, and the Complainant then managed to get to his knees and crawl to the roadside. Mr.

French testified the Accused then got back out of his vehicle, protested that it was the Complainant’s fault, and asked what he and the others were doing in the middle of the road. [ 32 ] According to the Witness, Mr. MacIntosh was present at this point, and handed him his cell phone to call 911. [ 33 ] Under cross examination, Mr. French suggested the Complainant had been standing directly in front of the vehicle, and that it had come to a complete stop when he placed his hands on roughly the centre of the taxi’s hood for what the Witness estimated to be a minute to a minute and a half.

During this time, he claimed, the Complainant stood glaring at the Accused, who in turn was waiving his fist and yelling, although the Witness could not hear what was being said. [ 34 ] Although he testified the Accused had been driving aggressively when he first approached them, he acknowledged having made no mention of this to investigators. [ 35 ] He denied that any one else in the group took

part in banging on the Accused’s vehicle, and denied further that the Accused got out and apologized to the Complainant. Finally, he denied Defence Counsel’s suggestion that there had been a prior incident wherein the same group of pedestrians had blocked the path of a white Camaro. [ 36 ] The next witness to testify for the Crown was the Complainant, Kevin Romaniuk. [ 37 ] Mr. Romaniuk is a resident of Medicine Hat, Alberta; on June 24, 2011 however, he was employed as an electrician at the K- 2 Mine, near Esterhazy.

After finishing an eleven hour shift, he testified, he returned to his room at the man camp where he showered, had dinner and drank three non-alcoholic beers. He denied having observed anyone else in his group consuming alcohol. [ 38 ] Later that evening, just after 8 pm, the Complainant noted a taxi, which he described as a Plymouth minivan attend at the man camp and then depart. At about this time, Mr. Romaniuk and his party began walking into the Town of Esterhazy to attend a street dance. They had, by his estimate, walked between 200 and 300 meters when they observed the same taxi again.

The Witness testified the vehicle was “ripping toward them”, and didn’t slow down until it had almost reached their party, where it finally stopped right in front of them. [ 39 ] According to the Complainant, he threw up his arms and asked the Accused “What’s your deal”. He testified the Accused was cursing at him, and shaking his first, although he acknowledged the Accused’s window was rolled up, and he could not make out what was being said.

He also acknowledged having placed his hands on the hood of the taxi. [ 40 ] At this point, the pedestrians had begun to clear the driving lane and make their way to the roadside. According to Mr. Romaniuk, as he too began to walk toward the shoulder, the Accused’s vehicle moved forward and caught his foot, knocking him to the ground and driving up his leg before coming to rest on his hip.

Although he could not say where the Accused was looking at the time, the Complainant recalled the front wheels of the vehicle being oriented in the direction of the shoulder and ditch. [ 41 ] The Complainant estimated he was under the vehicle for perhaps ten seconds, and recalled someone yelling “Stop, you’re

going to kill him”. He also recalled the Accused saying “Sorry man, I didn’t mean to do that”. Beyond that however, he had no recollection of speaking with police later at the hospital, or for that matter, whether he had been given anything there for pain management. [ 42 ] As a result of the incident, Mr.

Romaniuk suffered serious injuries to his pelvis, underwent surgery and was hospitalized for ten days; he was unable to return to work for two months and has a permanent scar extending from one hip to the other. [ 43 ] The Complainant could not recall, under cross examination, ever having told the investigating officer he had consumed a couple of Pilsner beer, as opposed to the non-alcoholic drinks he had testified to in examination in chief. [ 44 ] Mr. Romaniuk denied that anyone in his party had yelled at the Accused and told him to leave when the latter attended at the man camp earlier in the evening.

He described his group as being “in good spirits” prior to the incident, and suggested he placed his hands on the hood of the Accused’s vehicle, for no more than five to 10 seconds, to “see what his deal was”. According to the Witness, he was standing directly in front of the Accused’s vehicle at this point; he could not explain why he failed to simply move to the shoulder so Mr. Shewfelt’s vehicle could pass. [ 45 ] The Witness estimated Mr.

Shewfelt was traveling fifty kilometers per hour as he approached the group, but acknowledged that the Accused’s vehicle did not skid when coming to a stop in front of him, despite the gravel surface. He also recalled, while lying on the ground, observing the white truck in the other lane, but Mr. Romaniuk denied that it was there prior to the incident. He also denied that the Accused had gotten out of his vehicle before backing it off of him. [ 46 ] In cross examination, Mr. Romaniuk reiterated that the Accused did indeed attempt to apologize, and denied Mr.

Shewfelt said anything about the fact he was standing in the middle of the road. [ 47 ] The Crown’s final witness was Matthew Prodaehl. [ 48 ] Like the Complainant and Mr. French, Mr. Prodaehl had been employed at the K-2 Mine near Esterhazy on June 24, 2011. After finishing his shift that day, he returned to his room at the man camp, changed and consumed two or three beers; he testified he did not see the Complainant consume any alcohol preceding the incident. [ 49 ] Notably, Mr.

Prodaehl did recall seeing the Accused and his taxi attend at the man camp earlier in the evening, to pick up a co-worker by the name of Brendan, before the Witness and his group began walking into town that evening. [ 50 ] He explained that later, as the Accused’s vehicle approached them on the road, he and his group were walking on the on the north side, facing oncoming traffic. He observed the Accused’s vehicle come to a complete stop as the Complainant put his hands in the air and then placed them on the hood, somewhere between the passenger side and the centre.

The Accused, he said, appeared frustrated, but Mr. Prodaehl did not see him make any motion with his hands. He testified he saw the front wheels turn, and the car nudge forward, as Mr. Romaniuk braced himself before being run over. [ 51 ] Mr. Prodaehl didn’t recall seeing anyone else do anything to Mr.

Shewfelt’s vehicle, nor say anything to him to this point, but did recall some members of his group yelling at the Accused to back up, and banging on his van, when it came to rest on the Complainant. [ 52 ] He estimated the van was on top of the Complainant for perhaps ten seconds before, according to the Witness, the Accused got out of his vehicle and uttered words to the effect of “Sorry, I didn’t mean to run him over”. [ 53 ] The Witness testified had a beer in his hand, as did some others in the group, and he threw it into the ditch.

He recalled the driver of the white truck, which was parked in the opposite lane, got out and attended the scene.

[ 54 ] It was Mr. Prodaehl’s opinion that it would not have been possible for the Accused to proceed straight forward in his own lane and it would have been necessary for him to enter the oncoming lane to avoid hitting Mr. Romaniuk.

It would have been, in his words, “tight” for the Accused to get around the group with the white truck sitting in the oncoming lane. [ 55 ] Under cross examination, the Witness conceded having previously told investigators that he saw the Complainant consume two or three beers at the man camp. [ 56 ] He also estimated seeing the van approach from as much as five hundred meters away, and conceded there was nothing unusual about the Accused’s speed or manner driving; according to the Witness, Mr.

Shewfelt slowed appropriately as he approached their group before coming to a complete stop. [ 57 ] In the course of cross examination, the Witness retracted somewhat from his previous testimony, and acknowledged that what he may have heard the Accused say were words to the effect of “Sorry man, I didn’t mean to run you over” as opposed to “I just wanted to scare him”.

He also conceded that there was a great deal of anger directed at the Accused after the incident, and the scene was far from calm in his opinion. [ 58 ] He could not recall having seen a white Camaro on the road prior to the incident. [ 59 ] The first witness to testify for the Defence was Jonathon Pritchard. [ 60 ] On the day of the incident, Mr. Pritchard testified he was driving his white Camaro, along the same stretch of roadway approximately fifteen minutes prior to this incident.

He noted at that time a group of approximately six individuals walking down the road toward town, and recalled these pedestrians occupied so much of the roadway that he had to enter the oncoming lane to pass them. According to the Witness, the group was loud and boisterous, and some had beer cans in their hands, although he readily acknowledged under cross examination that he could not recall the group making any hostile gestures toward him personally as he passed. [ 61 ] The Defence’s next witness was the operator of Esterhazy Taxi Co., and Mr. Shewfelt’s employer, Roger Belfour. [ 62 ] Mr.

Belfour testified he dispatched the Accused to the man camp that evening, and recalled later attending at the scene of the incident. Once there, he found the Accused visibly upset and speaking with a police officer at the passenger side of the taxi. Mr. Belfour asked the officer why he was taking pictures and was advised that they were documenting the presence of the handprints and some spittle on the hood of the vehicle.

The Witness testified he personally observed what appeared to be spittle. [ 63 ] Under cross examination he admitted he could not say for certain that what he observed on the hood, close to the passenger side windshield was in fact spittle.

He also explained that as a condition of the contract he entered into with the operators of the mine, the taxi had recently passed a safety inspection. [ 64 ] The Accused, Mervyn Shewfelt, elected to give evidence in his own defence. [ 65 ] He is 67 years of age, and suffers from a number physical ailments, including diabetes, and problems with his nerves, cholesterol and blood pressure. He recently had a knee replaced and explained that, as a result of some damage to his rotator cuff, he is under doctor’s orders to not wear a seat belt.

At the time of the incident, according to the Accused, he was on thirteen separate medications. [ 66 ] He testified that at approximately 8 pm on June 24, 2011, he received a call from his dispatcher advising of a fare at the man camp. Upon arrival, he found a group of approximately seven individuals; save for the passenger, everyone in the group were drinking and holding beer cans. [ 67 ] Mr. Shewfelt described the group as loud and boisterous. When they began yelling obscenities at him and telling him to get

out of there, the passenger told him not to worry, as they were just “a bunch of drunken idiots”. [ 68 ] The Accused testified he transported his passenger to the street dance in town, before turning around and heading back toward his home. Although the speed limit on that roadway was fifty kilometers per hour, he was travelling, by his estimation, no more than thirty or forty, as this was all the road conditions would allow. [ 69 ] As he drove, he noted a group of men walking toward him in an easterly direction. The pedestrians occupied most of the west bound lane and made no effort to move to the shoulder.

As he approached, the Accused also noted the presence of a truck in the oncoming lane, and slowed down before coming to a complete stop a couple of feet in front of the Complainant, as it was not possible, in Mr. Shewfelt’s opinion, to have driven around the pedestrians while the oncoming lane was occupied. [ 70 ] Upon stopping, he explained, the Complainant struck the hood of his vehicle with his hand and then took a drink from a can of beer and spit on the hood as he moved off to the side. The Accused testified he became scared, given the size of the group and their boisterous demeanor.

The Complainant at this point was off to the passenger side, but he recalled there were other pedestrians still in front of his vehicle at this point. [ 71 ] According to the Mr. Shewfelt, he simply wanted to extricate himself from the situation, and began to pull slowly forward out of fear. To his knowledge, he testified, he did not steer the vehicle toward the Complainant, and he had no intention of striking Mr. Romaniuk or anyone else for that matter. [ 72 ] He estimated he had pulled forward approximately a foot before he realized he had struck the Complainant.

The other pedestrians began banging on his passenger side window and directing him to back up, which he did. When someone ordered him to get out of his vehicle, he did as well, but testified he was frightened. At this point, Mr.

Shewfelt testified, he went over to where the Complainant was lying, and apologized to him, explaining that it had been an accident; he denied having ever complained that it had been the Complainant’s fault for not moving. [ 73 ] He testified further that there was a great deal of yelling and shouting coming from the other members of the group, and by the time the police arrived at the scene, he was upset, nervous, scared, and in shock. [ 74 ] Mr.

Shewfelt confirmed in cross examination that the Complainant was the individual who hit the hood of his vehicle and spit on it, and that he was somewhere in the middle of the group of pedestrians, but closer to the passenger side of the vehicle when he was struck.

It was his recollection that there were two other individuals on the driver’s side of his taxi as well. [ 75 ] He denied shaking his fist at the Complainant, and explained again that he could not recall turning the steering wheel in the direction of the Complainant; he opined that it was possible that he had been pulling over to the shoulder when he initially stopped, and that the wheels were already oriented to the right when he again proceeded. Analysis [ 76 ]

Section 249 of the Criminal Code provides as follows: 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; .............

(3) Every one who commits an offence under subsection (1) and thereby causes bodily harm to any other person is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.

[ 77 ]

Section 2 defines bodily harm as “any hurt or injury to a person that interferes with the health or comfort of the person and that is more than merely transient or trifling in nature”. There can be no question that Mr. Romaniuk did, as a matter of fact suffer bodily harm as a result of being struck by a vehicle operated by the Accused. [ 78 ] The more difficult issue to be determined in this case is whether the evidence is sufficient to establish, to the requisite criminal standard, that the manner in which Mr. Shewfelt operated the vehicle was in fact, dangerous.

For the reasons set forth below, I have concluded it does not. [ 79 ] The leading authorities in this respect are the decisions of the Supreme Court of Canada in R. v. Beatty , 2008 SCC 5 and R. v. Roy , 2012 SCC 26 . While both cases deal with offence of dangerous driving causing death, the Court’s reasoning is equally applicable to present offence. [ 80 ] Speaking for a unanimous panel in Roy , Cromwell J observes: 1 Dangerous driving causing death is a serious criminal offence punishable by up to 14 years in prison.

Like all criminal offences, it consists of two components: prohibited conduct -- operating a motor vehicle in a dangerous manner resulting in death -- and a required degree of fault -- a marked departure from the standard of care that a reasonable person would observe in all the circumstances. The fault component is critical, as it ensures that criminal punishment is only imposed on those deserving the stigma of a criminal conviction.

While a mere departure from the standard of care justifies imposing civil liability, only a marked departure justifies the fault requirement for this serious criminal offence. 2 Defining and applying this fault element is important, but also challenging, given the inherently dangerous nature of driving. Even simple carelessness may result in tragic consequences which may tempt judges and juries to unduly extend the reach of the criminal law to those responsible. Yet, as the Court put in R. v.

Beatty , 2008 SCC 5 , [2008] 1 S.C.R. 49, at para. 34 , "If every departure from the civil norm is to be criminalized, regardless of the degree, we risk casting the net too widely and branding as criminals persons who are in reality not morally blameworthy." Giving careful attention to the fault element of the offence is essential if we are to avoid making criminals out of the merely careless. [ 81 ] Beginning at paragraph 26 of the decision, he explains: 26 In Beatty , the Court undertook an in-depth analysis of the elements of dangerous driving.

Although three opinions were delivered, the Court unanimously upheld the trial judge's finding that Mr. Beatty's momentary lapse of attention did not constitute a marked departure from the standard of care of a prudent driver even though it had tragic consequences. 27 Beatty addressed concern that the Court's reasons in Hundal did not sufficiently emphasize the importance of giving careful attention to the fault requirement of dangerous driving. Hundal did not expressly differentiate between the two elements of the offence -- the prohibited conduct and the required fault.

There was concern that judges and juries might infer the existence of the fault element too quickly and without sufficient analysis, simply from the fact that a motor vehicle had been operated in a dangerous manner. (This, I add parenthetically, is, in my view precisely what happened in this case.) The Court in Beatty sought to ensure that a meaningful analysis of both elements would be performed in every case and it did this by defining and separating the conduct and mental elements of the offence. 28 In Beatty , the majority of the Court spoke through the reasons of Charron J. which of course are the authoritative statement of the relevant principles.

In brief, the Court decided as follows. The actus reus of the offence is driving in a manner 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 that at the time was or might reasonably have been expected to be at that place ( s. 249(1) (

a) of the Criminal Code ). The mens rea is that the degree of care exercised by the accused's was a marked departure from the standard of care that a reasonable person would observe in the accused's circumstances ( Beatty , at para. 43 ). The care exhibited by the accused is assessed against the standard of care expected of a reasonably prudent driver in the circumstances. The offence will only be made out if the care exhibited by the accused constitutes a marked departure from that norm.

While the distinction between a mere departure from the standard of care, which would justify civil liability, and a marked departure justifying criminal punishment is a matter of degree, the lack of care must be serious enough to merit punishment (para. 48). [ 82 ] Cromwell J goes on to define the actus reus of the offence in the following terms: 33 Beatty held that the actus reus for dangerous driving is as set out in s. 249(1)(

a) of the Code , that is, driving "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 is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place" (para. 43). 34 In considering whether the actus reus has been established, the question is whether the driving, viewed objectively, was dangerous to the public in all of the circumstances.

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

injury created by the manner of driving that is relevant, not the consequences of a subsequent accident. In conducting this inquiry into themanner of driving, it must be borne in mind that driving is an inherently dangerous activity, but one that is both legal and of social value(Beatty, at paras. 31 and 34).

Accidents caused by these inherent risks materializing should generally not result in criminal convictions. 35 To summarize, the focus of the analysis in relation to the actus reus of the offence is the manner of operation of the motor vehicle.The trier of fact must not simply leap from the consequences of the driving to a conclusion about dangerousness. There must be ameaningful inquiry into the manner of driving. [83] In the present case, the incident occurred during daylight hours along a flat, single-lane gravel roadway.

Conditions wereclear, the roadway dry, and there is little evidence of any other traffic in the vicinity save for Clifford MacIntosh`s truck, which wasparked in the oncoming lane. [84] Mr. Shewfelt testified, and I accept, that he was sober at the time. I also accept that there was nothing of note in his manner ofdriving as he approached Mr. Romaniuk and the other pedestrians on the roadway. Although the Complainant and Jason French eachalleged Mr.

Shewfelt was driving aggressively, their evidence stood in direct conflict with that of the Accused and others, includingClifford McIntosh and Matthew Prodaehl, all of whom testified that he approached at a reasonable speed before coming to a completestop in front of the group. [85] Mr. Shewfelt has further testified, and I accept, that the presence of Mr. MacIntosh`s truck, parked in the oncoming lane,prevented him from simply driving around Mr. Romaniuk and the other pedestrians; again this was confirmed Mr. Prodaehl. Moreover,by all accounts, when he did eventually proceed forward, Mr.

Shewfelt did so slowly and then, only after the Complainant had slappedthe hood of his vehicle. Nonetheless, his decision to do so before Mr. Romaniuk was safely clear of his vehicle was, I am satisfied,objectively dangerous in the circumstances. [86] That however is not the end of the matter.

The actus reus of the offence having been established in this case, it remains to bedetermined if the evidence is similarly sufficient to prove the mental element of the offence, beyond a reasonable doubt. [87] Again, commencing at paragraph 36 of the Court’s decision in Roy, Cromwell J defines the mental element of the offence asfollows: 36 The focus of the mens rea analysis is on whether the dangerous manner of driving was the result of a marked departure from thestandard of care which a reasonable person would have exercised in the same circumstances (Beatty, at para. 48).

It is helpful toapproach the issue by asking two questions. The first is whether, in light of all of the relevant evidence, a reasonable person would haveforeseen the risk and taken steps to avoid it if possible. If so, the second question is whether the accused's failure to foresee the risk andtake steps to avoid it, if possible, was a marked departure from the standard of care expected of a reasonable person in the accused'scircumstances. 37 Simple carelessness, to which even the most prudent drivers may occasionally succumb, is generally not criminal.

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

But they generally will not rise to thelevel of a marked departure required for a conviction for dangerous driving" (para. 71). [88] In the present case, the Accused denies that he had any intention to strike the Complainant with his vehicle, and has testifiedthat in moving slowly forward as he did, he was simply attempting to extricate himself from what he perceived to be an intimidatingconfrontation with the Complainant and others in his party. He has, moreover, denied intentionally steering the vehicle’s wheels in thedirection of Mr.

Romaniuk, and has testified that he may have turned the wheels toward the shoulder of the road before coming to a stopin front of the Complainant, and that the subsequent collision with Mr. Romaniuk was simple inadvertence. [89] Assessing the evidence as a whole within the context of the analytical framework enunciated by the Supreme Court of Canada in R. v. W. (D.) (1991), (SCC), 3 C.R. 4th 302 (S.C.C.), and subsequently refined by the Saskatchewan Court of Appealin R. v. McKenzie (1996), (SK CA), 141, Sask. R., 221 (Sask. C.

A.), I find that the Crown has failed to prove themental element of the offence to the requisite criminal standard. While I may not necessarily believe Mr. Shewfelt’s version of events, Iam, based upon the evidence which I do accept, left with a reasonable doubt. That is to say, while it may be that, in the words ofCromwell J “a reasonable person would have foreseen the risk and taken steps to avoid it if possible” the evidence which I do acceptfalls short of establishing beyond a reasonable doubt that Mr.

Shewfelt’s “failure to foresee the risk and take steps to avoid it, if possible,was a marked departure from the standard of care expected of a reasonable person in the accused's circumstances”.

[ 90 ] For the foregoing reasons, I find the Accused, Mervyn William Shewfelt, not guilty. [ 91 ] My thanks to Counsel for their able assistance. _______________________ D. C. Chow, J.