Her Majesty the Queen - v. -, 2012 SKPC 98

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2012 SKPC 098 Date: July 24, 2012 Information: 24378862 Location: Esterhazy _____________________________________________________________________________ Between: Her Majesty the Queen - and - Quentin Tranberg Appearing: Andrew Wyatt For the Crown Michael McGaw, Q.C. For the Accused JUDGMENT R. GREEN , J I. OVERVIEW [ 1 ] Quentin Tranberg is charged with driving in a manner dangerous to the public on Church Road in the Rural Municipality of Fertile Belt, contrary to s. 249(1) (

a) of the Criminal Code . The Crown proceeded summarily. [ 2 ] Mr. Tranberg is 54 years of age and works for a neighbour named Arland Kurtz. He farmed his own land in the past, but

[2] Mr. Tranberg is 54 years of age and works for a neighbour named Arland Kurtz. He farmed his own land in the past, butnow leases it. On October 3, 2010, in the latter part of the afternoon, he was helping Mr. Kurtz fix his combine. He heard some AllTerrain Vehicles (ATVs) being operated in the distance, on a field he owned. These ATVs were being driven by three young males -Adamik Frumen (age 15 years), Matthew Fraser (age 16 years) and Paul Manaigre (age 15 years) - who were at the time they came toMr.

Tranberg’s attention driving around in mud on his field, which was to the south of Church Road. [3] I gather from the evidence presented at the trial that these boys were subsequently charged and pled guilty to a provincialstatute offence - which I take to be under The All Terrain Vehicles Act - for the manner in which they operated their ATVs in that field. [4] Mr. Tranberg took Mr. Kurtz’s four-wheel drive truck, which has a diesel engine and five-speed transmission. The truckwas locked in two-wheel drive mode, and Mr. Tranberg drove west on Church Road and then south into his field where the boys were.

Upon his arriving, the boys scattered. Mr. Tranberg followed Mr. Manaigre. The truck and the ATV collided as they drove across thefield. Mr. Tranberg then followed the ATV over Church Road and north into another of his fields, in which a crop of canola had justbeen swathed. [5] Mr. Tranberg followed him a distance through the north field and in a westerly direction on Church Road. He caught up tothe ATV and there was another collision between the vehicles. Mr. Manaigre was thrown from his vehicle and hit his head on theground. Mr. Tranberg, or someone on his behalf, phoned the RCMP. [6] Cst.

Langdon arrived on the scene at 4:36 p.m., and found the ATV wedged under the front driver’s side bumper of thetruck. Mr. Tranberg was seated in his vehicle. After attending to Mr. Manaigre, and viewing the scene, the officer arrested Mr.Tranberg at 5:08 p.m. for dangerous driving. This officer took pictures of the vehicles and the surrounding road, but took nomeasurements. He was not qualified as an expert in accident reconstruction at the trial. [7] The Crown presented four witness: Adamik Frumen, Matthew Fraser, Paul Manaigre and Cst. Langdon. The defencepresented two witnesses: Mr.

Tranberg and Wayne Taillon, a farmer who was combining with Mr. Tranberg before he drove over to theATVs. [8] The Crown submits that Mr. Tranberg chased after Mr. Manaigre on Church Road and rammed Mr. Manaigre’s ATV. Mr.Tranberg claimed that, as he pulled up beside Mr. Manaigre on Church Road, Mr. Manaigre accelerated his ATV and swerved into thetruck and turned in front of it. He said, as this was happening, he slammed on his brakes and skidded in a straight direction for a numberof feet. [9] The testimony of the Crown and defence witnesses varied on some key points, which include: (

a) how the contact betweenthe vehicles occurred in the south field; (

b) what speed the vehicles were travelling in the fields and on Church Road; and (

c) how thecollision on Church Road occurred. Ultimately, the question is whether the Crown has proved beyond a reasonable doubt that Mr.Tranberg’s driving on Church Road, as he caught up to Mr. Manaigre, was done in a manner that was dangerous to the public. Inanswering that question, Mr. Tranberg is entitled to the benefit of any reasonable doubt raised by the defence evidence (R. v. W.(D.), (SCC), [1991] 1 S.C.R. 742). II. THE LAW [10] Section 249(1)(

a) of the Criminal Code defines the offence of dangerous driving as operating a motor vehicle in a mannerdangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motorvehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place. The currentstate of the law regarding this offence, following from the Supreme Court’s decision in R. v. Beatty, 2008 SCC 5, was recentlysummarised by the Supreme Court in R. v.

Roy, 2012 SCC 26, at para. 28: In Beatty, the majority of the Court spoke through the reasons of Charron J. which of course are the authoritative statement of therelevant 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 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). [ 11 ] As result, in this case, I must determine whether there is proof beyond a reasonable doubt:

(1) That Mr. Tranberg drove on Church Road in a manner dangerous to the public, having regard to all the circumstances, including the nature, condition and use of that part of Church Road and the amount of traffic that at the time was or might reasonably have been expected to be on Church Road; and

(2) That the degree of care exercised by Mr. Tranberg was a marked departure from the standard of care that a reasonable person would have observed in these circumstances. III. ANALYSIS

(1) DID MR. TRANBERG DRIVE ON CHURCH ROAD IN A MANNER DANGEROUS TO THE PUBLIC? [ 12 ] As mentioned above, the evidence of the witnesses at this trial differed on some key points. I will consider the evidence on each, in determining whether Mr. Tranberg was driving on Church Road in a manner dangerous to the public. (

a) How the contact between the vehicles occurred in the field [ 13 ] Adamik Frumen and his friends were driving their ATVs south of Esterhazy and saw some mud in a field. They decided to “play around in it” and then saw a truck coming, in his words, “very fast”. The boys took off in different directions, and the truck followed Mr. Manaigre. He said the truck caught up to him and sideswiped him two or three times, with the driver’s side of the truck making contact. [ 14 ] Matthew Fraser said he saw a truck coming across the field at a fair speed. He didn’t think this fellow “wanted to talk”.

The driver of the truck singled out Paul and followed him across the field. He said the truck bumped Paul two to three times in the field, with the left front of the truck bumping the right back of the ATV. Mr. Fraser admitted that the reason the three ATV drivers scattered when they saw the farmer’s truck was that they knew they were not supposed to be in the field. [ 15 ] Paul Manaigre saw the truck coming across the field and said it didn’t look like the truck was slowing down. The three boys split up, as they knew they were in the wrong, and the truck came after him.

He said the truck sideswiped him twice in the field, enough to give him a jolt. He said it was the passenger side of the truck that hit the left side of his ATV. [ 16 ] Wayne Taillon is 62 years of age and also works for Arland Kurtz. On this day, he was with Mr. Tranberg, repairing a combine. He heard ATVs in the distance in Mr. Tranberg’s field, doing “donuts and wheelies”. Mr. Tranberg took Mr. Kurtz’s truck and went to talk to the ATV drivers. Mr. Taillon ran to the top of a nearby hill, about 300 yards away from where the ATVs were, and could see Mr. Tranberg approaching them. The ATVs scattered and Mr.

Tranberg followed the one going northeast. He said Mr. Tranberg came up beside that ATV, both vehicles went up a four foot incline and over Church Road and into a field on the other side of the road. He said the vehicles were close to each other in the field and that a field was not the best place to drive.

[ 17 ] Quentin Tranberg was fixing a combine with Mr. Kurtz and Mr. Taillon when he heard and saw three ATVs come onto his field south of Church Road. He said this field was farmed in a “no till” manner, and as a result it was important that the soil not be disturbed. He could hear the ATVs revving up and could see, over the hill, that the ATVs were doing wheelies in the field. After listening to this for 10 to 15 minutes, he got into Mr. Kurtz’s truck and drove over to where the ATVs were. [ 18 ] Mr.

Tranberg drove across the field toward the ATVs, and said that there were lots of ruts in the field and he was not going fast. He said he was going to talk to these guys and ask them to stay off of his field. He said the three ATVs went in different directions as he approached, and he followed the ATV going north. He said neither of the vehicles were travelling very quickly. He drove up a hill and was intending to get back to the correction lane at the side of the field. He wanted to stop the ATV driver to speak to him.

At the top of the hill he was close by the ATV, briefly lost sight of it, and then heard the two vehicles contact each other, with the ATV rubbing his truck on the right-hand side. He believed that the ATV driver had turned into his truck. (

b) What speed the vehicles were travelling in the fields and on Church Road [ 19 ] Mr. Frumen estimated that Mr. Manaigre was going 50 to 60 kilometres an hour in the field. He as well estimated that Paul was going 80 kilometres per hour on Church Road, an estimate which came as a result of his experience in driving an ATV, together with the dust appearing behind Mr. Manaigre’s ATV. He estimated that the truck was travelling 80 kilometres per hour in the field, 50 kilometres per hour as it reached the road and 100 kilometres per hour on Church Road.

The latter estimate of speed was influenced by the dust and rocks he said were flying out behind the truck and the noise the truck was making. He did not look at the speedometer on his ATV during the incident. [ 20 ] Mr. Fraser claimed his ATV had a maximum speed of 82 kilometres per hour and that Paul was going a “good speed” in the field, around 60 kilometres per hour. He said the truck was travelling 90 kilometres per hour on Church Road. [ 21 ] Mr. Manaigre estimated he was going 70 kilometres per hour in the field to get away from the truck.

He said he slowed down to 40 to 50 kilometres per hour when he reached Church Road before entering the second field. He had no idea how fast the truck was going at this point. When he re-entered Church Road, he drove west and said he “maxed out” his ATV. He had no idea how long he was on the road, and further had no idea how long it took to get to maximum speed on that ATV as it was only his second day operating it. [ 22 ] Mr. Taillon estimated that the fastest Mr. Tranberg was travelling in either field or on Church Road was 30 to 35 kilometres per hour. He said Mr.

Tranberg was travelling at 20 kilometres per hour in the first field he was in, 10 kilometres per hour when he crossed Church Road into the second field, and 10 kilometres per hour in the second field. He said the ATV entered Church Road at 10 kilometres per hour and then sped up to 20 kilometres per hour. He further said that both vehicles sped up on Church Road before he lost sight of them in the dust. He estimated that Mr. Tranberg was going 30 kilometres per hour when he lost sight of him. He admitted that the speeds he gave were likely at the low end of the scale.

However, he denied that the truck fishtailed on Church Road, and when asked whether Mr. Tranberg was going faster than 10 to 20 kilometres per hour in the field, he said “not much more”. [ 23 ] Mr. Tranberg said his initial speed was 30 to 35 kilometres per hour on Church Road driving toward the first field, about 400 yards away. The truck was in two-wheel drive mode. When he got onto the field, because of the ruts and potholes, he was bogging down and getting stuck, and as a result was revving up the engine but not travelling quickly. Mr.

Tranberg said that both he and the ATV continued across the field at 30 kilometres per hour. He said he picked up speed as he drove down Church Road following the ATV, but said his maximum speed was 35 to 40 kilometres per hour. (

c) How the collision on Church Road occurred [ 24 ] Mr. Frumen said the truck caught up to Mr. Manaigre on Church Road, with Mr. Frumen following about 30 yards behind. The vehicles were on Church Road for about 15 seconds before the collision. He said the left front of the truck struck the back left corner of the ATV, Paul flew into the air for about 10 feet and landed on the ground. When Mr. Frumen arrived at the scene, the ATV was wedged in front of the truck and Paul was sitting there and was “really sore”. There were angry words exchanged back and forth between the three boys and Mr. Tranberg. Mr. Tranberg was concerned about what the boys were doing in his field and the boys were

concerned about why he was not offering help to Paul. [ 25 ] Mr. Fraser said Mr. Tranberg chased down Mr. Manaigre and hit him. He said the front left of the truck hit the back of Mr. Manaigre’s ATV and that the ATV spun a bit to the right and both vehicles skidded to a stop. He was not sure whether Mr. Manaigre swerved before the collision between the vehicles. He said, after the collision, Mr. Tranberg yelled to them that they should grow up and that he had called the police. [ 26 ] Mr.

Manaigre said, after he “maxed out” on Church Road, he looked over his left shoulder and was then hit from behind by the truck. He agreed the distance from where the vehicles entered Church Road to where the collision happened was about 60 yards. When asked whether he swerved on the road, he said maybe, he was not sure, and that he did not recall. He said after he was hit by the truck, he hit his head and was “out cold”. He came to and he was dazed and not focused. He restated that he was inexperienced on this ATV, and that he was not sure of the speed the truck was travelling. [ 27 ] Mr. Taillon said Mr.

Tranberg followed the ATV through the second field and onto Church Road. He could not hear the noise of the vehicles and lost sight of the vehicles before the collision because of the dust that was being thrown up. [ 28 ] Mr. Tranberg was amazed that the ATV driver had driven into his swathed field. He followed the ATV out of the ditch and west down Church Road. He said the reason he turned west, and not east, as he came out of the north field was that, given the angle and incline, he had to go in that direction as he could not turn back east.

He planned to drive down Church Road to a crossroad before turning around and proceeding back east to where he was fixing the combine. He was cross-examined at length about why he did not come out of the north field and go east onto Church Road, toward where he was fixing the combine. He said, given the wetness of the field, he could not have built up enough speed to get up the embankment toward the east, and as a result had to go west onto Church Road and then turn around. [ 29 ] Mr. Tranberg said he drove down the right side of the road with the ATV in front of him on the left shoulder of the road.

He picked up speed to pass the ATV. As he pulled up to pass, the ATV driver looked over his left shoulder and then veered to the right into Mr. Tranberg’s truck, then accelerated and rubbed up past his door and turned in front of the truck. Mr. Tranberg said, as this was happening, he slammed on the brakes and skidded what he, later that day, stepped off on the road to be 16 to 18 feet in a straight line. He said he went about 60 yards down Church Road before the collision. [ 30 ] Mr.

Tranberg said there was no damage to his truck on either the driver’s side or the passenger side from the collision in the field or on Church Road. He believed that the ATV driver had looked up, was startled by the truck, and then veered into the side of the truck. He said, after the collision, he got out to see if the driver was okay and then called the police. [ 31 ] On cross-examination, Mr. Tranberg admitted that there was mud in both fields, and said that both fields were wet. He said he tried to avoid the slough areas in the fields.

He was asked, given his reference to the amount of mud in the fields, why there was not more mud evident in the pictures of his truck. He claimed there was mud evident on the truck in the pictures, and that the mud otherwise did not stick to the truck. He denied being angry and repeated that he wanted to talk to the boys. When asked why he did not stop as he approached Mr. Manaigre on Church Road to try to talk to him, he said the incident was over and he wasn’t wasting his time. (

d) Was the manner Mr. Tranberg drove on Church Road dangerous to the public? [ 32 ] The first issue in determining whether this was driving in a manner dangerous to the public is the speed Mr. Tranberg drove. I am satisfied and find that it is possible that Mr. Tranberg was travelling at the speeds he indicated: 30 kilometres per hour in the fields and 35 to 40 kilometres per hour on Church Road before the collision. That is because:

(1) As the truck Mr. Tranberg was driving was in two-wheel - rather than four-wheel - drive mode, I find this made the truck less able to pick up speed in the fields and on Church Road;

(2) The noise a truck like this would make, and the dust and rocks kicked up behind it driving on a country road would not necessarily indicate a high rate of speed;

(3) While the boys suggested both the truck and the ATVs were travelling quickly, I note not one of the boys testified about the speed he saw on the speedometer of his ATV and I am not otherwise satisfied beyond a reasonable doubt that the boys had an accurate recollection of the speeds the vehicles were travelling;

(4) Mr. Taillon testified that Mr. Tranberg’s vehicle was travelling 30 kilometres per hour when he lost sight of it on Church Road; and

(5) Most significantly, the distance Mr. Tranberg travelled on Church Road after leaving the north field and before colliding with Mr. Manaigre - which I find to be 60 yards based on the evidence of Mr. Tranberg and Paul Manaigre and on the picture of the road shown in Exhibit P-1-11 - likely would not have been enough distance for this truck to have achieved a high rate of speed. [ 33 ] In deciding whether this manner of driving was dangerous, s. 249(1) (

a) refers to 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. The pictures show Church Road to be a typical gravel grid road. There was no evidence of any other traffic on Church Road at the time of this incident or what traffic might reasonably be expected on the road. As a result, I have a reasonable doubt that this road had anything more than occasional farm traffic. [ 34 ] Mr.

Tranberg is not charged with dangerous driving in the south or north field, but an assessment of what happened in the fields is important to determining the credibility of his version of the collision on Church Road. While it is obvious that there was contact between the vehicles in the south field, I am not prepared to reject Mr. Tranberg’s version of how this happened. I am satisfied that it is possible that the contact was incidental, and not an intentional sideswipe of the ATV by Mr. Tranberg.

In making that finding I note the varied accounts between the boys about which side of the ATV was struck, the rough terrain over which both vehicles were navigating, and the reality that Mr. Manaigre, by his own admission, was an inexperienced driver on the ATV he was operating. [ 35 ] That then leads to how the collision on Church Road occurred. The prosecutor questioned Mr.

Tranberg’s account of what happened saying: (1) despite his version of essentially churning through a wet and muddy field, the pictures of his truck did not show evidence of mud remaining on its exterior after the collision; (2) the pictures as well did not show damage to the driver’s side of his truck, where he claimed Mr. Manaigre drove into him; and (3) his decision to drive west on Church Road after Mr. Manaigre, and not east toward where he was originally fixing a combine, suggested he was enraged and determined to stop the boy by whatever means. [ 36 ] Regarding the pictures of the truck taken by Cst.

Langdon after the collision, while there is not a significant amount of mud on the sides of the truck, I note there is mud visible on the picture marked as Exhibits P-1-5 and P-1-16. I as well note that Mr. Tranberg said he avoided the sloughs in the fields and that the mud simply did not stick to the truck. Further, while the pictures of the driver’s side of the truck do not show damage from a collision, neither do the pictures of the passenger side of the truck show damage from the collision which I find occurred in the south field with the right side of Mr. Tranberg’s truck colliding with the left side of Mr.

Manaigre’s ATV, as testified to by both of these drivers. [ 37 ] The picture of the ditch leading from the north field to Church Road shows the nature of the incline, which I accept to be four feet as stated by Mr. Taillon. That evidence, coupled with the length of the truck Mr. Tranberg was driving, in my view supports Mr. Tranberg’s explanation of why he proceeded west and not east down Church Road. The pictures further show skid marks in a straight line leading to where the truck stopped. This is consistent with Mr.

Tranberg’s testimony that he slammed on his brakes upon the collision, and then skidded 16 to 18 feet, a distance he stepped off later that day. [ 38 ] Ultimately, the issue is not whether I am satisfied beyond a reasonable doubt that the collision on Church Road happened as Mr. Tranberg described, but rather whether it is possible that it did. Considering: (1) my finding that it is possible Mr. Tranberg was travelling as slowly as 35 to 40 kilometres per hour on Church Road when he collided with Mr.

Manaigre; (2) the lack of any expert evidence on accident reconstruction of what happened between the two drivers on Church Road; and (3) the reality that Mr. Manaigre was an inexperienced ATV driver who admitted he may have swerved before the truck reached him, I conclude that it is possible the collision happened as Mr. Tranberg described; with Mr. Manaigre swerving into the driver’s side of the truck, Mr. Tranberg slamming on the brakes and Mr. Manaigre accelerating and turning into the path of the truck.

[ 39 ] Given that finding, taken together with the reasonable doubt I hold that this rural gravel road was occasioned by anything more than occasional farm traffic, I have a reasonable doubt that Mr. Tranberg drove in a manner dangerous to the public on Church Road.

(2) WAS THE DEGREE OF CARE EXERCISED BY MR. TRANBERG A MARKED DEPARTURE FROM THE STANDARD OF CARE THAT A REASONABLE PERSON WOULD EXERCISE IN THESE CIRCUMSTANCES? [ 40 ] Regardless of the reasonable doubt I hold that Mr. Tranberg drove in a manner dangerous to the public on Church Road, I am as well not satisfied that the degree of care exercised by him in driving on Church Road was a marked departure from the standard of care that a reasonable person would have exercised in these circumstances. Because I cannot rule out that the collision on Church Road happened as Mr.

Tranberg said, the question becomes whether the decision to follow Mr. Manaigre down Church Road and pass him constituted a marked departure from this standard. [ 41 ] While I do not accept, as Mr. Tranberg suggested, that he was not angry at the boys, I do accept that he had reasonable grounds to be concerned about the boys driving their ATVs in his “no till” field, given the admission by Mr. Fraser and Mr. Manaigre that the boys knew they were in the wrong. I am further satisfied that he acted reasonably in driving out to where the boys were. [ 42 ] Mr.

Tranberg’s decision to approach and pass an ATV travelling on the left side of a country road may well have been a departure from what a reasonable person would have done. Passing on the right-hand side of a vehicle is prohibited by s. 217(1)(

b) of The Traffic Safety Act , and common sense would have dictated caution in these circumstances. Whatever his liability might be civilly for the collision, I am nevertheless not satisfied beyond a reasonable doubt that his driving was a marked departure from the standard a reasonable person would have observed in these circumstances. That is because, as stated above:

(1) I accept Mr. Tranberg’s evidence that he had no option but to enter Church Road from the north field in a westerly direction;

(2) I am satisfied Mr. Tranberg may have been travelling as slowly as 35 to 40 kilometres per hour as he approached Mr. Manaigre; and

(3) I am satisfied it is possible Mr. Manaigre veered into Mr. Tranberg’s truck as he came by. IV. CONCLUSION [ 43 ] For the reasons stated above, I have a reasonable doubt:

(1) That Mr. Tranberg drove on Church Road in a manner dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which his truck was being operated and the amount of traffic that at the time was or might reasonably have been expected to be on Church Road; and

(2) That the degree of care exercised by Mr. Tranberg was a marked departure from the standard of care that a reasonable person would have observed in these circumstances. [ 44 ] He is found not guilty. R. Green, J