Her Majesty the Queen - v. -, 2011 SKPC 87

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2011 SKPC 087 Date: June 6, 2011 Information: 44659674 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Chun Huang Appearing: Sean Moen For the Crown Tim Turple For the Accused DECISION M.L. GRAY , J BACKGROUND [ 1 ] The accused was charged on the 23 rd day of May 2010, that he did operate a motor vehicle on a street, road, highway or other public place in a manner that was dangerous to the public contrary to section 249(1) (

a) of the Criminal Code and that he, having the care, charge or control of a motor vehicle that was involved in an accident with a vehicle and with intent to escape civil or criminal liability did fail to stop his vehicle and give his name and address, contrary to section 252(1) of the Criminal Code . The trial of this matter proceeded on March 17, 2011; at the conclusion the Crown conceded that there was no evidence to support a conviction pursuant

to section 252(1) . Decision on the allegation of dangerous driving was reserved. EVIDENCE [ 2 ] At the outset of the trial, it was admitted that the accused was the operator of the silver Acura throughout the incident described by witnesses, and that a booklet of photographs could be filed as a full exhibit without the necessity of calling the identification officer. A total of three witnesses were called, including the accused.

The evidence is straightforward and, in some respects, uncontradicted. [ 3 ] Between 9:30 and 10:30 at night, Jeanette Gelleta, a 25-year-old chemical engineer, was driving east on College Drive in Saskatoon. She was alone in her vehicle, a four-door Mazda 3. She observed a silver vehicle exiting McKercher Avenue in the merge lane onto College Drive; this vehicle travelled beside her on the right for a distance then pulled in behind her when the merge lane ran out. The driver and lone occupant then switched into the left-hand lane and overtook her.

He again changed lanes to position himself in front of her where he slowed his speed by braking. In response, she slowed from the 80-90 kilometres per hour which she had been travelling and moved into the left lane where she resumed her speed. Ms. Gelleta began to feel uneasy about the situation when the silver car again got behind her and followed so closely that she could not see the front bumper of his car. She estimated that the driver followed her in this fashion for a distance of approximately three kilometres.

Her intention was to turn left at McCormand Road where there are two left turn lanes; she was in the one on the right and stopped for a red light. The silver vehicle remained close behind her. [ 4 ] Once making the left turn, she turned right onto Stensrud Road with the intention of going to her boyfriend’s house, but was concerned about the Acura behind her. Rather than continue to her boyfriend’s house, she travelled on in an attempt to determine whether the vehicle was following her or whether it was a coincidence that he had come the same route.

She took a somewhat circuitous path at speeds around 30 kilometres per hour as this was a residential area. She became convinced that she was being followed and called 9-1-1. She then proceeded onto Wilkins Crescent in the direction of her boyfriend’s home. Shortly after she placed the call to the police, the silver car pulled ahead of her and slowed abruptly, forcing her to brake. She proceeded around that vehicle and continued on; the silver Acura then pulled into the oncoming lane and drove alongside her; the male driver began honking the horn, yelling and making hand gestures at her.

She refused to acknowledge his presence and continued to drive. At one point the driver of the Acura manoeuvred his car toward hers forcing her to take evasive action by moving into the parking lane. Both vehicles were travelling slowly. [ 5 ] The entire incident lasted about 15 minutes and covered a total distance of about five kilometres. [ 6 ] Much of Ms. Gelleta’s evidence was confirmed by Vanessa Decae who was a passenger in an Infinity driven by her husband. They followed the silver car north on McKercher Drive and onto the merge lane for College Drive. She also saw the blue Mazda, which was driven by Ms.

Gelleta travelling east on College Drive in the right-hand lane. Her attention was drawn when the silver car, which she later recognized as an Acura, continued to drive alongside the Mazda even after the merge lane had ended. She further confirmed that the Acura eventually pulled in very close behind the Mazda, then accelerated and overtook it. The Acura then switched into the right lane in front of the Mazda and “hit the brakes”. [ 7 ] Both vehicles proceeded to the intersection of College Drive and McCormand Road where there are two left turn lanes.

The Acura was inches behind the Mazda; the witness was to their left and able to see the operators of both of those cars. She saw a young female operating the Mazda and a young male operating the Acura; she did not know either individual. Both the male and the female were alone in their respective vehicles; Ms. Decae thought that the female looked upset and that the male looked “focused”. [ 8 ] After the three vehicles negotiated the left-hand turn onto McCormand Road, Ms. Decae watched the Mazda and Acura turn right onto Stensrud Road with the Acura still very close behind, approximately one foot at one point.

The Decaes continued on their way home, but their concern over what they had seen prompted them to change course and return to Stensrud Road to ensure that the young woman was all right. After driving for five to ten minutes, Ms. Decae noted two sets of headlights approaching at a slow rate of speed with one vehicle very close behind the other. As the first car drove by, she recognized it as the blue Mazda operated by the same woman, and recognized the vehicle behind as the Acura also driven by the same male. After the Mazda passed their position, her

husband edged their vehicle into the intersection as if to intercept the Acura; the male driver waved them on but they followed the Acurauntil Ms. Decae was able to record the licence plate number. They then again went to look for the Mazda which they located parked infront of a house. The female driver was outside and appeared upset as she was shaking and crying. Ms. Decae also estimated that theentire incident lasted about 15 minutes. [9] The accused testified that he is 22 years old, in his fourth year of university and second year of medical school.

On May 23,2010, he left his girlfriend’s house at about 10:00 p.m. He had not consumed any alcohol that evening. His route took him north onMcKercher Avenue to the merge lane onto College Drive, a path he drives daily. He noted the blue Mazda approaching on CollegeDrive. He checked his mirror and shoulder checked and realized that the Mazda was beside and very close to him, so he took his foot offthe gas, covered his brake and waited for her to pull ahead to give him an opportunity to access the travelling lane.

Instead, the driver ofthe Mazda also slowed; he believed that she either did not see him or was attempting to block him in the merge lane. He slowed, pulledonto College Drive and into the left-hand driving lane while the Mazda continued in the right. When the Mazda pulled into the left lane,he switched to the right and tapped his brakes. He noted the vehicle with the Decae family and one other vehicle overtake on his left,and he followed them. At some point throughout this he formulated an intention to follow the Mazda in order to stop and speak to thedriver.

As a medical student, he has seen the results of inattentive driving in hospital Emergency Rooms and thought it would be prudentto educate the driver of the Mazda by sharing with her “his hard-earned experiences”. While driving, he was listening to Frank Sinatraand described his emotional state as “calm” and “happy”, his thoughts on creating a BBQ recipe for the next day. In addition, he was“thinking in algorithms” about the perceived bad driving of the operator of the Mazda, his possible choices and the likely outcomes. [10] When the light turned green at McCormand Road, all the vehicles ahead of him turned.

Although the speed limit is 70kilometres per hour, the driver of the Mazda only accelerated to about 50 kilometres per hour. He continued to follow her whileformulating the following “algorithm”: if she stops her vehicle, he will have a chance to speak to her and do some good but if she did notstop, he would go home. He followed her the complete length of Stensrud Road and described feeling in a bind since she might soonreach her destination and he would miss his opportunity to speak to her. He described his motives as altruistic and fulfilling his medicalstudent oath to serve his community and do some good.

When the Mazda turned onto a crescent, he looked for a place to park, hopefullyfar enough away not to frighten her. When she drove through a stop sign, he realized that she might be scared and decided that was agood time to try to communicate with her. He thought she would be appreciative of the lesson he could teach. [11] He was not speeding, was keeping his car “steady” and trying “to make my car look as friendly as possible”. The operator ofthe Mazda slowed down and both cars at this point were “creeping” along at the same speed.

The female then made a rude gesture withher middle finger and he felt “disheartened” because he had put some effort into “helping” her. Although he realized that she was eitherangry, scared or distressed, he decided to try one more time to see if she wanted to talk. He pulled up beside her, still travelling veryslowly, put out his hand in the universal symbol for stop. She shook her head in a negative response, whereupon he tooted his car hornand again said “stop”. When she again shook her head at him, he pulled behind her vehicle. He was alongside the Mazda for fiveseconds.

Throughout this exchange, his car was two metres from the side of hers. As he proceeded on he saw the same Infinity, whichhad overtaken him on College Drive, nudging into the intersection which he was about to enter. [12] Mr. Huang denied ever following the Mazda at a distance of less than ten metres, or swerving his vehicle toward the Mazda. ANALYSIS [13] In weighing and assessing the evidence the Court is mindful that the principles enunciated in R. v. W.D. (1991), (SCC), 63 C.C.C. (3d) 397 and R. v. Mackenzie (1996), (SK CA), 141 Sask. R. 221 must be applied.

Afterconsidering the evidence as a whole, I accept that Mr. Huang’s intent was to stop Ms. Gelleta in order to speak to her, but I do not accepthis evidence as to the manner in which he operated his motor vehicle, nor am I left in a reasonable doubt by it. I found Mr. Huang’sevidence to be over-analyzed, over-rationalized and contrived. Although it is obvious that he is a highly intelligent, well-educatedindividual, he was unable to provide a simple, clear, step-by-step accounting of events.

At times, his evidence was melodramatic andseasoned with exaggeration. [14] Where the evidence of the accused differs from the evidence provided by Ms. Gelleta, I prefer and accept the evidence of Ms.Gelleta. There is significant support for her testimony in the evidence of Ms. Decae. Both women delivered their testimony in astraightforward and candid manner; neither was shaken in cross-examination. The fact that Ms.

Decae’s attention was drawn to the silverAcura as it was attempting to merge and that she continued to have concern for the safety of the female in the Mazda is inconsistent withthe description of the driving provided by the accused. Both Ms. Gelleta and Ms. Decae provided similar descriptions of the actions andmovements of Mr. Huang’s vehicle, and overall I find their evidence to be reliable and credible.

[15] That, however, does not end the matter, for the Court must also be satisfied that the evidence which is accepted provides proofbeyond a reasonable doubt of the offence alleged. [16] At para. 43 of R. v. Beatty, 2008 SCC 5 , [2008] S.C.J. No. 5, the Supreme Court of Canada set forth the tests forestablishing the necessary actus reus and mens rea of the offence of dangerous driving: (

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. (b)The Mens Rea The trier of fact must also be satisfied beyond a reasonable doubt that the accused’s objectively dangerous conduct was accompanied bythe required mens rea.

In making the objective assessment, the trier of fact should be satisfied on the basis of all the evidence, includingevidence of the accused’s actual state of mind, if any, that the conduct amounted to a marked departure from the standard of care that areasonable person would observe in the accused’s circumstances. [17] Clearly, conduct which amounts to dangerous driving must fall below the standard of the reasonably prudent driver; however,this does not mean that all negligent driving will amount to dangerous driving: see para. 45, R. v. Beatty, supra.

Rather, negligentoperation of a motor vehicle can be seen as a continuum beginning with civil negligence, progressing to the type of negligent drivingwhich attracts the consequences of provincial statutes and ultimately the kind of driving that requires the penal sanctions of the CriminalCode. In R. v. Graham, [2009] S.J. No. 116, Toth J. said at para. 29, with reference to Beatty, supra: ...the Crown must prove that the manner of driving of the accused, the actus reus, amounted to a marked departure from the standard ofcare a reasonable person would observe in similar circumstances.

This test for penal negligence requires a marked departure from thecivil norm and the Court may, on the basis of this conduct alone, find a blameworthy state of mind. Secondly, the objective mens rea isbased on the premise that a reasonable person in the accused’s position would have been aware of the risks arising from the conduct. [18] The driving must be, in the words of Justice Kovach “... more than simple inadvertence, more than thoughtlessness or asimple error in judgment”. There must be a criminal quality to it to justify a conviction for dangerous driving: see R. v. Dorush, [2009]S.J.

No. 52 at para. 14. [19] In considering the evidence which has been accepted, I find that there were a number of traffic infractions committed. Thequestion is whether the driving, on the whole, amounts to the kind of marked departure which should attract a penal consequence. Insummary, I find that the accused did not properly merge onto College Drive by failing to either speed up or slow down in order to enterthe driving lane in a usual manner, that he cut off Ms. Gelleta’s vehicle when he did enter her lane and that he followed her vehicle tooclosely throughout the time he was behind her. Although Ms.

Gelleta testified that the accused pulled in front of her on Wilkins Crescentrequiring her to brake, there was no evidence of whether that was a near collision and she described the speed of her vehicle as “maybe30 kilometres per hour” just prior. Further, the accused unlawfully travelled in the oncoming lane on Wilkins Crescent for a matter ofseconds while he was gesturing and signalling Ms. Gelleta to stop. The evidence establishes that throughout the incident, Mr. Huangwas travelling at the speed limit or below; there is no evidence of excessive or unsafe speed; he had not consumed alcohol.

There is noevidence that the accused was in jeopardy of losing control of his vehicle. There was little traffic on the roads in question.

[ 20 ] I have no doubt that the accused drove without reasonable consideration for others pursuant to s. 213(2) of The Traffic Safety Act R.S.S. c. T-18.1 , and that he committed other infractions of that provincial statute. However, the Court is not satisfied that the driving was dangerous within the meaning of s. 249(1) of the Criminal Code . I find support for this in the evidence of both Ms. Gelleta and Ms. Decae.

It is clear that although the accused got the attention of both women by his actions at the merge lane, both expressed more concern about the fact that the accused was persistently following a young woman who was alone, at night. Ms. Gelleta, when asked about her concerns that night, said: “... concerned for my safety...being hurt, hit, assaulted”. Later she said that she continued driving because she “didn’t want to be a sitting duck” and that she called for police assistance once she was convinced that he was following her.

I conclude that she interpreted the behaviour of the accused as akin to that of a stalker or someone intent upon harassment, and that her main concern was not from any inherent danger in his actual driving, but what might occur if she stopped driving. On the whole of this evidence, I am satisfied that although the accused engaged in bad driving, there was not such a marked departure that warrants criminal sanction. Accordingly, he is found not guilty. [ 21 ] However, the Court does not intend this finding to condone the accused’s conduct in any way.

His behaviour was unacceptable; it was not his duty to “educate” another driver about their possible driving infractions. Like any other citizen he could have recorded a licence plate number and made a call to the authorities to report the driving he thought was offensive. Stalking another driver in an attempt to force a face-to-face confrontation can never be seen as appropriate and in this case was very frightening for Ms. Gelleta.

Indeed, such behaviour will usually lead to unpleasant consequences and rarely, if ever, to a successful driver education seminar. [ 22 ] As there was no evidence of a collision or accident, the accused also is found not guilty of 252(1) of the Criminal Code . __________________________ M.L. Gray, J