Her Majesty the Queen - v. -, 2012 SKPC 1

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2012 SKPC 001 Date: January 19, 2012 Information: 39982981 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Robert Michael Skye Appearing: Lori Chamber s For the Crown Kathy Hodgson-Smith For the Accused JUDGMENT P.S. KOLENICK , J BACKGROUND [ 1 ] The accused is charged that on or about November 24, 2009, at Saskatoon, Saskatchewan, did operate a motor vehicle on a street, road or highway or other public place in a manner that is dangerous to the public, contrary to s. 249(1) (

a) of the Criminal Code .

[ 2 ] The Defence has filed a Brief of Law which is greatly appreciated by the Court. In it, various issues have been submitted as being pertinent. However, they are all dependent upon a determination if the evidence for the Crown is sufficiently credible to prove beyond a reasonable doubt the constituent elements of the offence. If it is, then all of the other issues have been resolved. The Court has concluded that is indeed the case. REVIEW OF THE EVIDENCE FOR THE CROWN Constable Kai Noesgaard [ 3 ] Constable Noesgaard of the Saskatoon Police Service was on duty as a member of the Patrol Division.

Part of his duties was traffic enforcement, including the operation of a laser speed gun. At approximately 6:10 a.m., he was setting up on 11 th Street West, intending to aim the laser at westbound traffic. He became aware of a white pick-up truck heading in his direction, for which he estimated the speed to be 80 kph in a 50 kph speed zone. At roughly the same time, however, a grey Dodge Ram pick-up truck with Ontario plates passed the white pick-up and was accelerating rapidly. That grey motor vehicle was being operated by the accused. He estimated the speed of the accused’s motor vehicle to have been 95 kph.

Because of the higher speed, the accused’s motor vehicle became the focus of his attention. [ 4 ] The officer headed in pursuit, going westbound as well. The police vehicle had initially been roughly 300 metres behind when the pursuit had started. En route there is a four-way stop at the intersection of Elevator Road and 11 th Street West. At that point, the white pick-up was still between them and the officer could not have a clear view of whether the accused’s motor vehicle had stopped, as required by law.

As the police vehicle made its way through the said Elevator Road intersection oncoming traffic had impeded the officer from passing for a short period of time. Thereafter he was able to pass the white truck and another motor vehicle, so that he could pace and estimate the speed at which the accused’s motor vehicle was allegedly travelling, at 155 kph in an 80 kph speed zone.

The officer noted as well that it was slippery causing the police vehicle tires to slide. [ 5 ] As they approached the intersection of 11 th Street West and Highway #7, the accused slowed to approximately 20 kph, but did not stop as they reached the stop sign at that intersection. This was the same grey Dodge Ram pick-up with the Ontario plates. Highway #7 has a speed limit of 100 kph and 110 kph at that general location. It has two lanes each way, going north and south, with a yield sign for the traffic turning left and heading south.

There was another motor vehicle stopped at the stop sign at Highway #7, which the accused’s motor vehicle almost hit as the accused went through the stop sign without making a lawful stop. [ 6 ] Regardless, the accused turned left onto Highway #7, heading south. Traffic on the highway was very heavy. In order to pursue, the officer had to wait at least five seconds before he could turn southbound on the highway. He entered onto #7 roughly 300 metres behind the accused’s motor vehicle. Road conditions were slippery with a layer of ice, and some fog.

The officer observed the accused’s motor vehicle pass three other motor vehicles, making three lane changes without signalling. The officer had accelerated as fast as he could but the road conditions were so poor he could not keep up. He was travelling at 180 kph and was not comfortable going any faster for fear of losing control. Through pacing and estimating the gaps between the two motor vehicles he concluded the accused to have been travelling at 185 kph, when the officer had been going 180 kph. Therefore he activated the emergency lights and siren. The accused responded and came to a normal stop.

He produced his driver’s license and registration and was placed under arrest for dangerous driving. There was a passenger. The accused had been reluctant to comply with general directions at first so the officer called for back up. He also confirmed with the accused that he had a baton and pepper spray, but in due course, the accused did comply. [ 7 ] In cross-examination the officer confirmed, that in his opinion, using the laser to estimate speed he is generally accurate within 5 kph.

At the material time here, the accused’s motor vehicle was passing the white truck directly in front of the officer so he decided to pursue. He denied that it was possible that the grey truck had been a dirty white truck instead. [ 8 ] In regard to the 155 kph pacing, that had occurred on a long stretch of roadway which was suitable for that purpose. He estimated also that it is roughly two kilometres from Chappell Drive to Highway #7.

He was attempting to estimate the pace of the accused’s motor vehicle even though driving conditions were not safe and there were no other motor vehicles at the time in the immediate vicinity.

[ 9 ] However, the officer did concede that there had been a mistake in his testimony in his failure to recall that, for a period of time, there had been a white car as well as the white truck for at least a portion of the period in issue when he was attempting to deal with the accused’s motor vehicle. He did not suggest that the presence of any other traffic had inhibited his ability to carry out what he regarded as a reliable estimate of speed by his usual methods. In that regard, he was able to see the accused’s motor vehicle the whole time as he was attempting to pace and estimate speed.

No other motor vehicle was going at that speed. He confirmed as well that the Ontario license tags, which he had noticed, both as the motor vehicle passed by on 11 th Street West, and also when he was finally stopped on Highway #7. [ 10 ] Further in cross-examination, the officer confirmed that he was required to accelerate to 100 kph after he entered onto Highway #7. He claimed to have had the accused’s motor vehicle in sight the whole time, although he had been required to take his eyes off the accused for a fraction of a second as he made his way onto Highway #7.

Regardless, there was no doubt in his mind that it was the same motor vehicle, even though he was a third of a mile away. In due course he had paced the accused’s speed at 180 kph. After he had checked the speed, the officer activated the emergency equipment and the accused stopped. He had not been able to stop him earlier because of speed and road conditions.

There were two other motor vehicles between the police vehicle and the accused’s motor vehicle and they all stopped. [ 11 ] In re-examination the officer confirmed that he was unobstructed behind the accused’s motor vehicle when the emergency equipment was activated which does not necessarily mean that the police vehicle was immediately behind the accused’s motor vehicle. EVIDENCE FOR THE ACCUSED Evidence of the Accused [ 12 ] The accused is an ironworker who resides in Ontario.

At the time of this alleged matter he was employed as a welder on a contract at the Cory Potash Mine which involved him travelling to work at the site, by heading down 11 th Street West, and on to the mine on Highway #7. He had a residence on Avenue I South, across the alley from a workmate who lived on Avenue J South. As was his usual practice at the time, he picked up his passenger at roughly 6:00 a.m., and headed off to work.

Normally the trip to work took roughly 15 minutes. [ 13 ] He was operating his 2008 diesel one ton work truck, which he had owned for approximately six months when this alleged matter had occurred. He claimed to have a good memory of events, because his wife’s birthday was on November 24, so she had been in Saskatoon visiting him for a week or so. He advised also that it was a nice morning, and no snow.

The roads were clear and not wet or anything. [ 14 ] As they were travelling on Circle Drive, approaching 11 th Street West, the accused had passed a motor vehicle which was going roughly 50 kph, because the speed limit was 60 kph, and had properly used his signals. Thereafter, he headed onto 11 th Street West and filed as exhibits, a series of photos which he had taken the day before he testified, as well as some Google map photos, in order to offer some perspective in his description of events.

One of the photos did suggest that the dotted line on the pavement approaching the four-way stop at Elevator Road and 11 th Street West would allow for the lawful passing of other motor vehicles. Another photo indicated the general area where the accused had lawfully passed a slower moving white truck, which he believed to be a rental vehicle, as they approached the said four-way stop.

The accused also provided a photo of the four-way stop, where again, he confirmed he had made a complete stop, rather than merely going slowly through it. [ 15 ] After the four-way stop had been properly completed, the accused made his way down 11 th Street, where he encountered a red van and a white pick-up truck, which presumably were in front of the accused’s motor vehicle as he drove. The accused also suggested in a photo that there is a significant bend in the road as 11 th Street West approached the intersection with Highway #7, impeding the sight line to some extent.

Regardless, he confirmed that road conditions were perfect, and there was no slipping or sliding of his motor vehicle as alleged.

[16] As the group of motor vehicles approached the intersection with Highway #7, there were three or four vehicles coming asoncoming traffic. The accused came to a full stop at the stop sign. Thereafter his and another motor vehicle went into the medianbetween the two-way traffic. The white pick-up truck went through the intersection, and crossed the highway while the accusedsignalled and turned left on Highway #7. A photo of this general location is again part of the evidence for the Defence.

There was a lotof traffic but the accused was able to go into the left lane in the westbound vehicles and move into the right lane slow traffic once he hadworked his way into the general flow of motor vehicles. Once again one of the photos which he had tendered as an exhibit did show thegeneral location where that had occurred. [17] Finally, the last photo which he had filed indicated that the accused had been required to dodge around a large expansion jointbump which was rough to cross, so he had temporarily shifted to the left lane in order to avoid impact with it.

He was familiar with thatbump from travelling to work and wanted to avoid it if possible. At that time as well he became aware of a black truck coming up fastfrom behind in the left lane. It was at this time as well he became aware of the police vehicle travelling at high speed from behind withits emergency lights flashing. He believed that the police might have been after the black truck for speeding so he pulled over to theright to make room for the police vehicle to pass.

However, all three motor vehicles ended up stopped on the side of the road. [18] The focus of the police officer was on the accused, rather than the black truck. The accused provided his driver’s license andregistration. He moved to the tailgate to get out of the line of traffic, when told to stand against the motor vehicle. The accused busiedhimself tying his work boots while waiting to get the speeding ticket. However, the officer said words to the effect that “you’re notgoing to drive like that in my city” and claimed that he had been going over 200 kph.

He denied that his truck could go that fast, butregardless he was placed under arrest for dangerous driving. [19] The accused did not believe that he had been travelling anymore than 120 kph on Highway #7. He agreed also that he may have been travelling at 100 kph or perhaps less after the four-way stop on 11th Street and Elevator Road, because people drive a bit fasteron that stretch. [20] In cross-examination the accused confirmed that he had Ontario license plates. In general as well, he had not made any notesof the circumstances, but had good recall because of these unusual circumstances.

Also, if there is a 50 kph speed zone for some distance west of the four-way stop on Elevator Road and 11th Street West, it was an oversight on his part. Further, he was not aware ofthe police vehicle whatsoever until the emergency lights had been activated however, he was able to recall, the black truck because itlooks like one operated by a fellow worker at the potash mine. He did concede as well that there is only a single lane in the medianwhere he was sitting with the other motor vehicle to access Highway #7.

He denied cutting off that other motor vehicle, believing that itwas going straight while the accused was attempting to turn left onto Highway #7. He did not believe that it was signalling left or had tocut him off in order to proceed after making the left turn. He did not see any other motor vehicles slam on their brakes as alleged. [21] The accused denied that he would have been able to go faster than 120 kph in heavy traffic and that in any event, theaccused’s motor vehicle is not capable of going at that speed, in the range of 200 kph.

As well, he had not attempted to avoid the bumpat the overpass because of the extreme speed, but rather because he was aware of it being there and did not want to do damage to histruck. He had done a shoulder check before changing lanes to avoid the bump. The black truck had gone beside the accused’s motorvehicle at the time when the accused was attempting to do the lane change. ANALYSIS Is the evidence for the Crown sufficiently credible to prove the constituent elements of the offence beyond a reasonable doubt? [22] I had occasion to consider the general principles on a charge of this nature in R. v.

Ingram (2010), 2010 SKPC 120 ,361 Sask. R. 290, noting as follows commencing at para. 37: [37] The Court very much appreciates receiving all of this material from the parties. Not surprisingly, they do tend to be a product of their particular facts in each case. I note as well the general statement of principles contained in R. v. Matheos (2008), 67 M.V.R. (5th)128 (Alta. Q.B., Yamauchi J.), commencing at para. 5 on proof of mens rea in the context of the circumstances therein:

5. The parties based their arguments on R. v. Beatty, 2008 SCC 5 , [2008] S.C.J. No. 5 (S.C.C.), a very recent case of theSupreme Court of Canada. As with any criminal case, the Crown must establish the actus reus, or act of the accused, which in this caseis, in the words of the Criminal Code, driving 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 timeis or might reasonably be expected to be at that place.” Mr.

Matheos, through his counsel conceded that Mr. Matheos was driving insuch a manner. 6. The Crown must also prove, beyond a reasonable doubt, the mens rea, or criminal intent. Of course, the law cannot go on ametaphysical excursion into the mind of the accused in most criminal cases. Beatty, along with the earlier Supreme Court of Canadadecision in R. v. Hundal, (SCC), [1993] 1 S.C.R. 867 (S.C.C.), give us some guidance, in this regard.

Beatty, at para.43, said: ... 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’scircumstances. Hundal and Beatty refer to this as a “modified objective test.” 7. Both counsel conceded that there is not a clear line between civil negligence, which would not attract criminal liability, and adeliberate act of dangerous driving which would.

This case, along with most others, falls somewhere in the middle. Beatty recognizedthis when it said, at para. 7: A mere departure from the standard expected of a reasonably prudent person will meet the threshold for civil negligence, but will notsuffice to ground liability for penal negligence. This distinction between a mere departure and a marked departure from the norm is aquestion of degree. [38] Further, s. 249(1)(

a) of the Criminal Code states 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 anduse 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 expectedto be at that place; [39] As noted, in general the burden is on the Crown to prove the constituent elements of the offence beyond a reasonable doubt withcredible evidence, and the accused is presumed innocent until proven guilty. In assessing credibility, the Court is guided by theprinciples restated in R. v.

McKenzie (P.N.) (1996), (SK CA), 141 Sask. R. 221 (Sask. C.A.) (from R. v.

Rose (A.)(1992), (BC CA), 20 B.C.A.C. 7 (B.C.C.A.)), para. 4: First, if you believe the accused, obviously you must acquit; Secondly, if after a careful consideration of all of the evidence, you are unable to decide whom to believe, you must acquit; Thirdly, if you do not believe the evidence of the accused but you are left in reasonable doubt by it, you must acquit; Fourthly, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidencewhich you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

[40] The determination of credibility does not involve the Court opting for one version of events or the other. Rather, the Crown mustprove that its evidence is credible, and there is no onus on the accused whatsoever in that respect. Even if the Court prefers the evidenceof the Crown, it must still consider whether the evidence for the defence raises a reasonable doubt. Therefore, credibility of the materialwitnesses needs to be considered, in that context. [23] Of course it is difficult to attempt a comparative analysis of the various circumstances of cases in the hope that one will findone overly similar.

However, I refer to the judgment of my colleague Judge Toth in R. v. Graham (C) (2009), 2009 SKPC 25 ,330 Sask. R. 90, to be somewhat helpful in that regard, at least to the extent that it involved excess speed in an urban setting. Theaccused therein was observed making a rapid, but legal lane change at a very high rate of speed on Albert Street in Regina. He wasclocked going 143 kph in a 50 kph zone, with traffic that was normal or moderate. It was of concern to the Court that the accused hadbeen travelling at almost three times the speed limit.

In finding the accused guilty, it was noted as follows by the Court, at para. 42: [42] Although I find that the impugned conduct did not take place over a long period of time, it cannot be said that the accused had atemporary lapse of attention. No evidence was tendered to indicate that there was an explanation for the excessive speed. He wouldhave travelled at this pace for more than one kilometre, after being observed by the police. His pace was deliberate and planned and hedrove at this speed knowing or having ought to have known of the potential hazards which might befall.

The speed was not just a hurriedand steady pace but rather the accused, perhaps enjoying the moment with friends on a pleasant summer night, essentially “put the pedalto the metal” and raced down Albert Street at a dangerous speed.

I find this behaviour constitutes a marked departure from the civilstandard of care a reasonably prudent person would observe in the circumstances. [24] In any event regarding the analysis herein, the officer had suggested that in his experience as a peace officer operating a laserunit he was able to give a reliable estimate of speed, usually within 5 kph, based on his experience, both estimating and pacing motorvehicles as allegedly occurred here. [25] He also suggested that the grey Dodge Ram pick-up truck with the Ontario plates which he had eventually stopped on Highway #7 was the same one he had initially encountered on 11th Street West and followed for roughly two kilometres down thatstreet, and onto Highway #7.

In that regard, it is reasonable to infer that the accused had been the operator of that motor vehiclethroughout, rather than the passenger. [26] The evidence was also sufficient to establish that the black half-ton truck which had been stopped at the same time and placehad not been engaged in dangerous driving. Rather it was the vehicle being operated by the accused. [27] In general the officer testified in a fair and reasonable manner. While there were some minor inconsistencies, they were notsufficient to undermine the overall worth of his testimony.

He was fair-minded in conceding that he had not been in a position to see whether the accused had run the four-way stop at Elevator Road and 11th Street West, and did not suggest that had occurred.

The noteswhich he had prepared at the time were a reasonable record of the matters as they unfolded and he did not attempt to embellish. [28] In respect to the issue of the accused’s credibility, the Court has concluded that he was not credible in attempting to suggestthat almost two years later, he had a reliable memory of what had occurred because of the unique circumstances and that it was at oraround his spouse’s birthday when she had been in town for a visit at that time. In that regard he had not made any notes and wasattempting to operate strictly by memory.

He may have a faulty recall of much of the circumstances as they unfolded, particularly as itrelated to poor road conditions as alleged and the manner in which he is to have purported to have operated his motor vehicle at thematerial time. [29] Therefore the evidence does establish for the Crown that the driving had occurred with the accused leaving the residentialarea and heading mostly on a non-residential stretch for roughly two kilometres with the accused eventually entering onto Highway #7where he headed south until he was stopped by the police. [30] While he was still somewhat in the residential area his speed was estimated to be 95 kph in a 50 kph zone.

There was other

[ 30 ] While he was still somewhat in the residential area his speed was estimated to be 95 kph in a 50 kph zone. There was other vehicular traffic in the area. Road conditions were slippery. After making a proper four-way stop at Elevator Road and 11 th Street West, as he made his way through the stop sign on Highway #7, he was travelling at 155 kph in an 80 kph speed zone. As well he merely slowed, rather than stop at the stop sign at Highway #7. Another motor vehicle was ahead of him at the stop sign and he went by that one rather than waiting his turn and making a proper stop.

It was apparent that the traffic on Highway #7 was heavy and driving conditions continued to be poor with some fog, slippery and a layer of ice. Despite those adverse conditions, the accused was driving at roughly 180 kph in a 110 kph zone while encountering three other motor vehicles at that speed and making three lane changes without signalling. Fortunately the officer was able to get the accused stopped before any further problems ensued. [ 31 ] The issue in the matter before the Court herein is not just speed, but it is certainly an aggravating factor.

That is particularly so when the accused picked up the pace from 155 kph in an 80 kph zone, on 11 th Street, to 180 kph on Highway #7 in a 110 kph speed zone. That had occurred in darkness, with slippery, icy road conditions and traffic that was heavy on Highway #7. He had failed to make a proper stop at the stop sign on Highway #7, and had to avoid contact with another motor vehicle stopped at that same location ahead in line.

Before he was stopped on Highway #7 the accused had passed three other motor vehicles, making three lane changes without signalling. [ 32 ] The accused is not credible in his denial of sufficient driving misconduct as alleged and is guilty as charged.

It was apparent from the reliable evidence of the Crown that the accused had operated his motor vehicle in a manner dangerous to the public having regard to all the circumstances, including a major condition and use of the place at which the motor vehicle was being operated and the amount of traffic at the time where it might reasonably be expected to be at that place, as alleged, in s. 249 of the Criminal Code . The accused had intended to operate his motor vehicle in that manner. As such, both the actus reus and the mens rea have been proven beyond a reasonable doubt.

The accused is guilty as charged. ____________________________ P.S. Kolenick, J