Her Majesty the Queen - v. -, 2014 SKPC 214

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 214 Date: December 18, 2014 Information: 33304209 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Eugene Wesley Arcand Appearing: Tom Macnab For the Crown Darren Winegarden For the Accused JUDGMENT B.D. WRIGHT , J I Introduction [ 1 ] Eugene Arcand is charged with dangerous driving contrary to s. 249(1) (

a) of the Criminal Code , as a result of an incident alleged to have occurred on October 7, 2013. Constable Keating, a peace officer with the Saskatoon Police Service, alleges that as he crossed 2 nd Avenue on foot in the pedestrian crosswalk at the intersection of 2 nd Avenue and 19 th Street, he was almost struck by a motor vehicle operated by Mr. Arcand. Mr. Arcand denies that this occurred, and denies that anyone was even in the crosswalk when he went through it.

[2] Given the contradictory evidence presented at trial, this case requires a determination of credibility, which is to be assessedhaving regard to the principles established in R v W(D), (SCC), [1991] 1 SCR 742, and R v McKenzie (1996), (SK CA), 106 CCC (3d) 1 (Sask CA). II The Evidence [3] Constable Keating testified that he was on duty on October 7, 2013, and had attended Provincial Court in Saskatoon to testifyat a trial for a red light ticket he had issued to Mr. Arcand on March 25, 2012. He testified at that trial and Mr. Arcand was convicted ofthe red light violation. After the trial concluded, as Mr.

Arcand left the courtroom he stopped where Constable Keating was seated in thegallery, glared at him, huffed and then walked out. [4] Constable Keating noted that Mr. Arcand had appeared agitated throughout the trial for the red light violation, and continuedto appear agitated when he stopped and glared at Constable Keating. [5] Constable Keating waited a couple of minutes to leave the courtroom after Mr. Arcand left. He said he was surprised by Mr.Arcand’s conduct after the trial because when he had issued Mr. Arcand the red light ticket, Mr. Arcand had been polite andcooperative. However, given Mr.

Arcand’s conduct after the trial, Constable Keating testified he waited a few minutes before leavingthe courtroom in order to avoid any possible conflict. When he did exit the courtroom into the lobby of the courthouse, Mr. Arcand wasnot there. [6] Constable Keating exited the front door of the courthouse, turned right and walked westbound on the sidewalk on the north side of 19th Street East. He was walking to his patrol car which was parked in the angle parking on 2nd Avenue South, near GalaxyTheatres. [7] As he walked westbound on the sidewalk, Cst. Keating observed Mr.

Arcand ahead of him, and observed Arcand make a left turn off the sidewalk and walk in front of a silver Jeep Grand Cherokee which was parked on the north side of 19th Street East in the third spot back from the intersection of 19th Street and 2nd Avenue. As Mr. Arcand turned to walk in front of the Jeep Grand Cherokee,he looked back toward Cst. Keating and they locked eyes for a second. Mr. Arcand got into the Jeep, and Constable Keating continuedto walk westbound on the sidewalk. As he walked past the Jeep, he took note of the license plate number. He also noted that Mr. Arcand was in the vehicle by himself.

Constable Keating continued walking west on the sidewalk and got to the intersection of 19th Street and 2nd Avenue. When he arrived at the intersection, the pedestrian walk light to cross 2nd Avenue was on, so he began to do so. [8] As Constable Keating began crossing the street, he heard the screeching of tires and the noise of an engine accelerating. He took a couple of more steps, looked left over his shoulder and saw the Jeep turning right onto 2nd Avenue. The Jeep was approaching atsuch a speed that Cst. Keating had to jump out of the way to avoid being struck.

He took a couple of quick steps and arced his body toavoid being hit by the vehicle. He then continued to twist his body to the left and was facing northeast when he observed the Jeep toslow. Mr. Arcand was driving the vehicle, and when he slowed he was yelling at Constable Keating. However, Constable Keatingcould not make out what Mr. Arcand was saying because his voice was muffled by the closed window of the vehicle. [9] Constable Keating then testified that Mr. Arcand accelerated hard and proceeded north on 2nd Avenue. He took note onceagain of the licence plate number of Mr.

Arcand’s vehicle, and radioed for another police unit to stop Mr. Arcand, but none were available. Cst. Keating went to his patrol car and drove up 2nd Avenue in search of Mr. Arcand, but could not locate him. As a result, hedrove to the Saskatoon Police Service station and provided a statement about the incident to the Acting Sergeant on duty. [10] Constable Keating further testified that on the day of the incident, he was in full uniform. The road conditions on October 7,2013 were dry, and the incident occurred during daylight, at approximately 2:30 in the afternoon. [11] Constable Keating believed that Mr.

Arcand’s manner of driving was intentional. He believed it to be purposeful given what

[ 11 ] Constable Keating believed that Mr. Arcand’s manner of driving was intentional. He believed it to be purposeful given what had happened in Traffic Court after the conclusion of the trial for the red light violation, the eye contact made with him by Mr. Arcand while he was walking down the sidewalk, the hard acceleration of the vehicle, and the yelling by Mr. Arcand before he accelerated hard once again and drove off. Constable Keating testified that he found Mr. Arcand’s manner of driving to be extremely dangerous, in that if he had not moved out of the way he would have been struck by Mr.

Arcand’s vehicle. Furthermore, he testified that the manner of driving by Mr. Arcand was not what would be expected for a downtown Saskatoon street, with a pedestrian walk light illuminated and a pedestrian in the crosswalk of the intersection. [ 12 ] In cross-examination, Constable Keating was asked what he thought about Mr. Arcand alleging that Cst. Keating had been engaged in racial profiling on March 25, 2012. Constable Keating testified that was not true, and that he could not even see the driver when the vehicle went through the red light.

He said the vehicle was stopped because it went through the red light at a high rate of speed, and when asked why he did not give a speeding ticket to Mr. Arcand, he responded that he had a good conversation with Mr. Arcand on that occasion and saw no need to give two tickets to him. [ 13 ] Constable Keating was also asked why he made a note of the license plate number of Mr. Arcand’s vehicle on October 7, 2013 as he walked past it on the sidewalk. Constable Keating testified that it was simply because it was the vehicle that Mr.

Arcand entered. [ 14 ] Constable Keating was then cross-examined about the speed of the Arcand vehicle. He testified that the vehicle came around the corner at such a rate of speed that if he had been struck, the force of the collision would have thrown his body. [ 15 ] Constable Keating was the only Crown witness. Mr. Arcand then testified on his own behalf. His testimony began with a recitation of a number of his accomplishments. He testified that he is an events coordinator and events planner, mostly for First Nations events.

He testified he was formerly Vice-Chief of the FSIN, from 1991 to 1996 inclusive, and was in charge of the Justice Portfolio where he worked with various police forces, including the Saskatoon Police Service. He testified that he worked with various judges in his professional capacity dealing with restorative justice issues, and that he still has long term friendships with judges, former Ministers of Justice and former Deputy Ministers of Justice.

He testified that he represented Saskatchewan on the Truth and Reconciliation Commission, and noted that the vest he was wearing in court was from the Truth and Reconciliation Commission. He testified that he wears the vest only when it is a special occasion where truth and reconciliation are important. Furthermore, he noted that when he swore on the Bible prior to giving his testimony, he also swore on an eagle feather that he had brought with him and which had been at all of the hearings of the Truth and Reconciliation Commission. [ 16 ] Mr. Arcand then testified about the events of October 7, 2013.

He began by noting that he had challenged the red light ticket because he felt he had been racially profiled and had not gone through the red light. He testified that he represented himself at the trial for the red light ticket, but was convicted. After being convicted, he was given some papers and he left the courtroom. He says he had no contact with anyone, except for a brief conversation with Vance Winegarden in the lobby of the courthouse.

He says he then left through the front doors of the courthouse and proceeded to his vehicle, which was parked in the second metered stall to the west of the main doors of the courthouse. He got into his vehicle, checked his messages, and had a brief telephone conversation with his wife. As he was sitting there, someone walked by in a police uniform. He says that he then pulled out of his parking spot, went west on 19 th Street, north on 2 nd Avenue, and then east on 20 th Street before heading across the Broadway Bridge. [ 17 ] Mr. Arcand denied that he quickly accelerated his vehicle.

He says he had no reason to, given that he had just come from traffic court. He also denied that he almost hit Constable Keating or was yelling at him. [ 18 ] Mr. Arcand testified that he did not learn about the dangerous driving charge until December 19, 2013. He says that he was at home when he got a telephone call from someone at the Saskatoon Police Service asking him to come to the station to talk about an incident that occurred October 7, 2013. He says that he responded: “You mean my little discussion with Vance?” He was told that there was something more serious that the police wanted to talk to him about.

He says he did not want to talk without someone from the Chief’s office present, “because I don’t like what’s been happening there.” [ 19 ] Mr. Arcand was told that no one was available from the Chief’s office, so he agreed to attend to the station with his wife. When he went to the station, he was eventually arrested for dangerous driving. Interestingly, Mr. Arcand added that prior to December he had phoned Chief Weighill and expressed that what was happening was not right.

He says he told Chief Weighill that everything that was being done was contrary to what had happened in the Truth and Reconciliation Commission.

[ 20 ] In cross-examination, Mr. Arcand acknowledged that prior to being stopped by Constable Keating on March 25, 2012 for the red light ticket, he had never met him or had any prior dealings with him. He acknowledged that he had no problems with Constable Keating on March 25, 2012. [ 21 ] Mr. Arcand says that he did not appreciate receiving the red light ticket, because he did not go through the red light. He felt he had been racially profiled, and was treated unfairly because he was of aboriginal ancestry.

He further acknowledged that he was frustrated with the court process, right from the first day, and had predicted from the start that he would be convicted of the red light violation. He said it was a “foregone conclusion” that he would be convicted. He then added that, since he knew he was going to be convicted right from the start, he had no reason to be frustrated when he was convicted. However, he then testified that he was not saying he was in a good mood when he left court. [ 22 ] Mr.

Arcand says he had no reason to over-react after being convicted of the red light violation, and had no interaction with Constable Keating in the courtroom after the trial. He says that after he left the courthouse, he did not see Constable Keating on the sidewalk. He acknowledged that while he did see a police officer in uniform walk past his vehicle while he was still parked in front of the courthouse, he did not see the officer`s face and so cannot say if it was Constable Keating. [ 23 ] Mr.

Arcand denies squealing his tires and accelerating hard from the parking stall, denies driving rapidly into the intersection of 19 th Street and 2 nd Avenue, and denies almost striking Constable Keating with his vehicle in that intersection. In fact, he says, he never saw anyone in the intersection, and did not see any police officers or police vehicles until he got to 20 th Street. He denies yelling at Constable Keating through the closed window of his vehicle. [ 24 ] In cross-examination Mr. Arcand was asked why he did not want to talk to the police without someone from the Chief`s office being present.

He stated it is because he has a distrust of the Saskatoon Police Service. Finally, he was also asked why he called Chief Weighill to complain about what was happening to him. His response was that if he had endangered someone`s life there should have been an “APB” out for him that very day, rather than being called by the police and being upset right before Christmas. He says the police are “trying to ruin my life”. III Issues [ 25 ] The issues in this proceeding are as follows: 1. Has the Crown proven the actus reus of the offence of dangerous driving? 2.

Has the Crown proven the mens rea of the offence of dangerous driving? IV Analysis [ 26 ] I have referred at length to the conflicting testimony in this proceeding, and after considering the evidence in light of the principles that must guide me in assessing credibility, I have concluded that I do not believe Mr. Arcand’s evidence, and that I am not left in a reasonable doubt by it. [ 27 ] In coming to those conclusions, I have taken into account a number of inconsistencies in the evidence of Mr. Arcand, as well as aspects of his testimony which simply do not make any sense. [ 28 ] Mr.

Arcand says that he was not frustrated or upset after being convicted of the red light ticket. However, by his own

testimony, he says he did not appreciate receiving the red light ticket because he had not gone through the red light, and had in fact been racially profiled. Given those facts, it simply does not seem plausible or consistent that Mr. Arcand was not frustrated when his assertion of racial profiling was rejected at trial. [ 29 ] Despite the fact that Mr. Arcand suggested he was not frustrated or upset after being convicted of the red light ticket, by his own testimony he acknowledged that he was frustrated with the court process, and had predicted right from the start that he would be convicted.

He then tried to suggest that because he knew right from the start that he would be convicted – that it was a “foregone conclusion” – that he had no reason to be frustrated when he was convicted. Not only does this contradict his testimony that he was frustrated by the court process and did not appreciate receiving the ticket, it also simply does not make sense that he would not be upset by a court proceeding which he clearly believed to be unfair and pre-determined. [ 30 ] I also note at another portion of his testimony, Mr. Arcand contradicted himself again.

As I have already noted, he said he had no reason to be frustrated after he was convicted, given that it was a foregone conclusion. However, he went on to add that he “wasn’t saying he was in a good mood when he left court”, thereby contradicting himself again. Therefore, during the course of his testimony he went from saying he was frustrated by the court process, to saying he was not frustrated because the conviction was a foregone conclusion, to saying that he was not in a good mood after court.

Aside from the implausibility of his testimony that he was not upset by the outcome of a process in which he was very clearly quite invested, the fact is that he contradicted himself repeatedly on this point. [ 31 ] In a similar vein, he testified he had no reason to over-react after being convicted of the red light violation. Once again, as I have already noted, he contradicted himself at other points in his testimony when he said that he was frustrated by the court process. Furthermore, I simply do not accept his testimony that he had no reason to over-react.

On the contrary, he had just finished a court proceeding that he testified had been frustrating to him, where he felt he would not get a fair trial, and where his claim of racial profiling was rejected and he was convicted of a red light violation he said he had not committed. There appear to be many reasons for him to over-react. This is even more the case given Mr. Arcand’s testimony that he had a distrust of the Saskatoon Police Service. Clearly, he had many reasons to be upset by the outcome of the trial for the red light violation. [ 32 ] Mr.

Arcand also acknowledged in his testimony that he had never had any contact with Constable Keating prior to receiving the red light ticket on March 25, 2012, and had no other contact with him afterwards. He also admitted that on March 25, 2012 his interactions with Constable Keating were professional, polite and cooperative. Neither he nor Constable Keating behaved inappropriately, and he says he had no problems with Constable Keating. Yet, he alleges that Constable Keating had racially profiled him, and had given him a red light ticket even though he had not gone through the red light. Mr.

Arcand’s testimony in this regard is inconsistent, and, once again, does not make sense. [ 33 ] It follows from what I have said that I do not believe Mr. Arcand’s evidence, and that it does not leave me with a reasonable doubt. [ 34 ] I turn then to the evidence of Constable Keating, and why I have concluded that I believe Constable Keating to be a credible witness. First, he was clear and consistent throughout his testimony.

The details of his evidence were not at all challenged in cross- examination. [ 35 ] Furthermore, Constable Keating’s evidence made sense, and there did not appear to be any motive or reason for Constable Keating to fabricate his testimony. He had just testified at a trial where it was alleged he had engaged in racial profiling, but that allegation had not been accepted and the accused was convicted. As a result, there was no reason for Constable Keating to be upset and concoct a story; his conduct, and the red light ticket he had issued were, in essence, vindicated by Mr.

Arcand’s conviction for the traffic violation. [ 36 ] Constable Keating displayed no hostile attitude toward Mr. Arcand, and there was no indication that his testimony was coloured by an effort to portray Mr. Arcand in a negative manner. In fact, Constable Keating testified that he was surprised by Mr. Arcand’s conduct in traffic court after being convicted of the red light violation, because when he was issued the red light ticket Mr. Arcand had been polite and cooperative.

[ 37 ] There were simply no indicators of any bad faith or mala fides by Constable Keating toward Mr. Arcand. By Mr. Arcand’s own admission, Constable Keating acted professionally and appropriately toward him at all times. Accordingly, although the defence suggests that Constable Keating was lying and had some agenda to fabricate a story about Mr.

Arcand almost running him over, there is no evidence to support that theory. [ 38 ] In support of the suggestion that Constable Keating was fabricating his evidence, the defence argues that there was no reason for Constable Keating to note the license plate number of Mr. Arcand’s vehicle when he initially walked by it, unless Constable Keating had an agenda and was planning to concoct the story about being almost run over. I do not accept this argument. On the contrary, I find it completely understandable that Constable Keating would take note of the license plate number of the vehicle Mr. Arcand entered.

Given the actions of Mr. Arcand as he left traffic court, including glaring and huffing at Constable Keating, and then locking eyes with Constable Keating as Mr. Arcand stepped off the sidewalk, I would have been surprised if Constable Keating had not noted Mr. Arcand’s license plate number. [ 39 ] At this point, I also wish to address one further issue raised by the defence. During closing argument, defence counsel suggested that Constable Keating was not credible because his evidence was not accepted by a different judge in an unrelated proceeding.

In that proceeding, R v Mertins , 2012 SKPC 183 , Labach J. did not accept Constable Keating’s evidence in one particular respect. After outlining a disagreement in the evidence of the accused in that case and Constable Keating, Labach J. stated, at para. 12, as follows: “I do not accept Constable Keating’s evidence that this occurred.” Based on this, the defence in the present case invited me to conclude that Constable Keating was lying in the Mertins matter, and was therefore not a credible witness in the within matter.

Furthermore, defence counsel attempted, during the cross-examination of Constable Keating in the present case, to ask Constable Keating about his testimony in the Mertins matter. I did not permit that cross-examination, as I was of the view that such cross- examination was improper. In that regard, I refer to R v Boyne , 2012 SKCA 124 , which confirms at paras. 47 - 51 that whether or not the testimony of a witness in a prior proceeding was accepted, is an impermissible avenue to pursue in cross-examination.

The argument of the defence that Constable Keating was not a credible witness in the within matter simply because his evidence was not accepted in a prior unrelated proceeding, is simply not tenable. [ 40 ] Given all of the above, I have concluded that I accept the testimony of Constable Keating in its entirety, and I find as fact that the incident occurred as described in his testimony.

In light of that, I now turn to whether the Crown has proven, beyond a reasonable doubt, both the actus reus and the mens rea of dangerous driving. [ 41 ] The Supreme Court of Canada fully considered the law with respect to dangerous driving in R v Beatty , 2008 SCC 5 , and subsequently in R v Roy , 2012 SCC 26 .

The law with respect to dangerous driving , as established in those cases, was summarized by the Saskatchewan Court of Appeal in R v Alves , 2014 SKCA 82 , as follows at paras 22 - 23: 22 The actus reus and mens rea of dangerous driving were set out in R v Beatty , 2008 SCC 5 at para. 43 , [2008] 1 S.C.R. 49, in Charron J.’s majority reasons. These were subsequently affirmed by a unanimous Supreme Court in R. v. Roy , 2012 SCC 26 at para. 33 , [2012] 2 S.C.R. 60.

In Beatty , Charron J. held that the actus reus of dangerous driving under s. 249 of the Criminal Code is “defined ... by the words of the enactment.” The actus reus of dangerous driving therefore requires: 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 of the place at which the motor vehicle is being operated and the amount of traffic at that time is or might reasonably be expected to be at that place.” 23 The mens rea of dangerous driving is a modified objective test.

As Charron J. held in Beatty : 43 . . . 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 involved in the conduct manifested by the accused. [Emphasis added]

Actus Reus [ 42 ] I have already found as fact that Mr. Arcand squealed the tires of his vehicle and accelerated hard from his parking stall, and proceeded rapidly into the pedestrian crosswalk at 19 th Street and 2 nd Avenue at a time when any pedestrians in the crosswalk would be legally crossing pursuant to the pedestrian signal. This occurred at approximately 2:30 in the afternoon on a weekday, a time when pedestrians would reasonably be expected to be in the crosswalks of downtown streets.

In fact, there was a pedestrian in the crosswalk at the time, namely Constable Keating, and that pedestrian was forced to jump out of the way of Mr. Arcand’s vehicle in order to avoid being struck by it. [ 43 ] On those facts, I have no hesitation in concluding Mr.

Arcand was 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 nor might reasonably be expected to be at that place.” Mens Rea [ 44 ] In assessing the mens rea of dangerous driving pursuant to the modified objective test, I must 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. [ 45 ] Furthermore, in R v Beatty , supra , Charron J. also noted as follows at para. 47: . . . the mens rea requirement for the offence of dangerous driving will be satisfied by applying a modified objective test.

This means that, unlike offences that can only be committed if the accused possesses a subjective form of mens rea , it is not necessary for the Crown to prove that the accused had a positive state of mind, such as intent, recklessness or wilful blindness. Of course, this does not mean that the actual state of mind of the accused is irrelevant.

For example, if proof is made that a driver purposely drove into the path of an oncoming vehicle in an intentionally dangerous manner for the purpose of scaring the passengers of that vehicle or impressing someone in his own vehicle with his bravado, the requirement of mens rea will easily be met. [ 46 ] In the present matter, there is evidence from which I can infer, and from which I conclude, that Mr. Arcand’s manner of driving was either intentional, or was done recklessly as to the danger it caused. In particular, the evidence of Constable Keating that Mr.

Arcand was agitated at the conclusion of the trial for the red light violation, that he stopped and glared at Constable Keating and huffed at him before leaving the courtroom, that he locked eyes with Constable Keating before walking to his vehicle, that he squealed the tires of his vehicle and accelerated rapidly from his parking stall, and that he was yelling at Constable Keating through the closed window of his vehicle before speeding off, are all indicative of Mr. Arcand’s actual state of mind. So too is the fact that Mr.

Arcand acknowledged he was frustrated by the court process. [ 47 ] Given all of that evidence, I have no hesitation in concluding that Mr. Arcand either intentionally drove his vehicle as he did – perhaps to scare Constable Keating, or simply out of anger for having been convicted of the red light violation – or was reckless as to the danger resulting from the manner of his driving. That being the case, I am satisfied beyond a reasonable doubt that the mens rea of dangerous driving has been established. [ 48 ] However, even if I am wrong that there is evidence upon which I can conclude that Mr.

Arcand drove as he did either intentionally, or recklessly as to the danger resulting from the manner he was driving, I am still of the view that his conduct in driving as he did amounted to a marked departure from the standard of care that a reasonable person would observe in Mr. Arcand’s circumstances, and that the mens rea requirement has still been met. As noted in Beatty at para. 48 : . . . while proof of subjective mens rea will clearly suffice, it is not essential. In the case of negligence-based offences such as this one,

doing the proscribed act with the absence of the appropriate mental state of care may instead suffice to constitute the requisite fault. The presence of objective mens rea is determined by assessing the dangerous conduct as against the standard expected of a reasonably prudent driver. If the dangerous conduct constitutes a “marked departure” from that norm, the offence will be made out. [ 49 ] In coming to this conclusion, I am also mindful of the two-step approach for assessing mens rea as suggested at para. 36 of R v Roy , supra : It is helpful to approach the issue by asking two questions.

The first is whether, in light of all the relevant evidence, a reasonable person would have foreseen 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 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. [ 50 ] In driving as he did, Mr. Arcand created a danger to the public. Objectively, a reasonable person in Mr. Arcand’s position would be aware of the risk of injury to a pedestrian lawfully in the crosswalk as Mr.

Arcand drove through that crosswalk, and would have done something to avoid creating that danger. The failure of Mr. Arcand to foresee that risk, and to take steps to avoid creating it, was a marked departure from the standard of care expected of a reasonable person in Mr. Arcand’s circumstances. V Conclusion [ 51 ] I therefore find Mr. Arcand guilty of dangerous driving. _________________ B.D. Wright, J