Her Majesty the Queen - v. -, 2013 SKPC 147

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2013 SKPC 147 Date: August 27, 2013 Information: 39986971 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Evan Kedves Appearing: Kim Humphries For the Crown Michael Owens For the Accused JUDGMENT S.L. METIVIER , J INTRODUCTION [ 1 ] The Accused, Evan Kedves, is charged with dangerous operation of a motor vehicle contrary to s. 249(1) (

a) of the Criminal Code . The offence is alleged to have taken place on September 26, 2012, while driving in the westbound lanes on the Circle Drive freeway in Saskatoon, Saskatchewan, between Attridge Drive and Warman Road. The speed limit on this particular stretch of Circle Drive is 90 km/hour. There are three lanes of westbound traffic separated from the eastbound traffic by a grass meridian. [ 2 ] The Crown called one witness, Cst. Scanlen, an off-duty police officer. The Accused testified on his own behalf.

[ 2 ] The Crown called one witness, Cst. Scanlen, an off-duty police officer. The Accused testified on his own behalf. Ryan Giesbrecht, a passenger in the vehicle driven by the Accused, also testified for the defence. CROWN EVIDENCE Cst. Scanlen [ 3 ] Cst. Scanlen has been a member of the Saskatoon City Police Service for six years, working in the traffic division for the past two years. As part of his police training, Cst. Scanlen completed a two day course for laser operation that included visual speed estimation. [ 4 ] On Wednesday, September 26, 2012, at approximately 5:35 p.m., Cst.

Scanlen was returning from a personal motorcycle trip driving a 2004 Kawasaki motorcycle. Cst. Scanlen took the exit off of Attridge Drive at a speed of approximately 85 km/hour. He was merging onto Circle Drive in the right-hand lane when a Black Subaru Impreza (the “ Black Car ” ) passed by him in the middle lane at a high rate of speed. As Cst. Scanlen was being passed by the Black Car, it caused his motorcycle to wobble and his leather jacket to pull forward in the wind, a sensation he compared to being passed in the opposite direction by a fully loaded semi- trailer. Once on Circle Drive, Cst.

Scanlen accelerated his speed to approximately 90 km/hour and continued to drive in the right lane. [ 5 ] The events occurred during rush hour in extremely heavy traffic. It was a clear, sunny day with good road conditions. [ 6 ] Cst. Scanlen testified that after t he Black Car flashed by him, it made an abrupt lane change without signalling from the middle lane into the left-hand lane. The Black Car cut off a blue pick- up truck travelling in the left-hand lane by pulling approximately two metres in front of it. Cst.

Scanlen observed the front of the blue pick-up truck dip, signifying that the vehicle was forced to take evasive action by quickly dropping its speed. Cst. Scanlen was not in a position to see if the brake lights on the blue pick- up truck were activated as his motorcycle was approximately parallel with the blue pick-up truck. [ 7 ] Cst. Scanlen estimated the speed of the Black Car as it proceeded in the left-hand lane at approximately 140 to 150 km/hour. There were no vehicles ahead of the Black Car in the left lane for approximately 200-300 metres.

The Black Car maintained a high speed in the left lane for approximately two to three seconds. [ 8 ] After the Black Car went over the Circle Drive Bridge, it changed into the middle lane without signalling, cutting in front of a small maroon car that was travelling in the middle lane. Cst. Scanlen was not in a position to estimate the distance between the maroon car and the Black Car; however, he observed the brake lights on the maroon car, signifying that the driver was forced to take defensive driving action by reducing his/her speed.

Shortly after passing the maroon car, the Black Car changed into the right lane, again without signalling, and took the exit ramp onto Warman Road. [ 9 ] Cst. Scanlen did not provide an approximate speed of the Black Car as it travelled in the middle lane or the right- hand lane, but agreed that it had to slow down to fall in with the moving traffic. There is no evidence that the Black Car was speeding other than in the left lane for a period of approximately two to three seconds with no vehicles directly in front of it. [ 10 ] Cst.

Scanlen described the driving behaviour of the Accused as “ extreme ” for a period of about four to five seconds, taking into account the excessive speed, abrupt lane changes and failures to signal. DEFENCE EVIDENCE Evan Kedves [ 11 ] The Subaru Impreza is known as a “ rally car ” with an ability and reputation of driving fast. Shortly before 5:00 p.m. on September 26, 2012, the Accused was driving the Black Car from Sutherland to Fox and Hounds Pub & Brewery on Warman Road

accompanied by his friend, Ryan Giesbrecht ( “ Giesbrecht ” ). The two men were talking and listening to music on the CD player. [ 12 ] The Accused took the exit off of 108 th Street onto Circle Drive and was proceeding west on Circle Drive in the middle lane of traffic at a speed of approximately 90 to 100 km/hour when he came upon a slower moving vehicle travelling in front of him at approximately 80 to 85 km/hour. The Accused completed a shoulder check and activated his signal light for approximately five seconds before changing into the left-hand lane to pass the slower moving vehicle.

The Accused denied that he cut off the pick-up truck. His testimony was that there was easily a car length between the two vehicles. [ 13 ] The Accused remained in the left-hand lane for 300 metres or so, accelerating to about 100 to 110 km/h our. He testified that his top speed was no greater than 115 km/hour. In cross-examination, the Accused recalled that as he was signalling to change into the left-hand lane, he looked at his speedometer and noted that he was going 109 km/hour. [ 14 ] In order to take the Warman Road exit, the Accused had to be in the far right lane.

After completing a shoulder check and signalling his intention to do so, the Accused changed into the middle lane at a speed of approximately 100 km/hour.

He estimated the distance between the Black Car and the vehicle he pulled in front of to be one and a half car lengths. [ 15 ] The Accused stayed in the middle lane for about three seconds then changed into the right-hand lane after shoulder checking and signalling his intention to do so. [ 16 ] The Accused acknowledged that it was rush hour and that there was heavy traffic on Circle Drive. [ 17 ] Earlier that day, between 2:00 p.m and 4:00 p.m., the Accused consumed two beers and had a bite to eat with a friend at a restaurant and bar in Sutherland.

He was not feeling affected by alcohol as he drove the Black Car on Circle Drive heading for the Fox and Hounds Pub & Brewery. Ryan Giesbrecht [ 18 ] Giesbrecht is 24 years old and has been friends with the Accused for about seven years. He currently resides in Singapore and testified electronically via Skype. Giesbrecht has held a learner ’ s permit but has never held a driver ’ s licence. [ 19 ] Giesbrecht was a passenger in the Black Car driven by the Accused on September 26, 2012.

He testified that in order to get from Sutherland to the Fox and Hounds Pub & Brewery the Accused took Central Drive onto Attridge Drive, Attridge Drive onto Circle Drive and Circle Drive onto Warman Road. [ 20 ] Geisbrecht recalled that the Accused was driving in the right-hand lane on Circle Drive until he came upon a slow moving car at about the Circle Drive Bridge. Giesbrecht estimated the speed of the slow moving car to be about 80 km/hour based on the speed of the other traffic on Circle Drive.

He estimated the Accused ’ s speed at approximately 100 to 105 km/hour based on the fact that the semi ahead of them was travelling faster than they were. [ 21 ] The Accused remained behind the slow moving car for about five to ten seconds before passing it by changing from the right-hand lane into the left-hand lane. Giesbrecht recalled that there was a truck and a semi in front of the Black Car in the left-hand lane but believed that there was ample room in front of the Black Car to execute the lane change.

Geisbrecht never looked behind the Black Car as his attention was focussed to the front and to the side. [ 22 ] As the Accused approached the exit onto Warman Road, he changed into the middle lane, merging in with traffic in front of the slow moving car. The Accused then merged into the right-hand lane, in a slowing manner, to take the exit onto Warman Road.

[23] Notwithstanding Giesbrecht’s testimony that he never looked behind the Black Car, he stated in cross-examinationthat “there was more than enough room” between the Black Car and the vehicles it pulled in front of. Geisbrecht also “assumed” theAccused signalled, even though he could not recall hearing a signal light or looking to see if the signal light was on. THE LAW AND ANALYSIS [24] Section 249(1)(

a) of the Criminal Code provides as follows: 249.

(1) Every one commits an offence who operates (

a) a motor vehicle in a manner that is dangerous to the public, having regard to all the circumstances, including the nature, condition 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; [25] The principles governing the offence of dangerous driving established by the Supreme Court of Canada in R. v. Beatty, 2008SCC 5 , [2008] 1 S.C.R. 49 were recently reaffirmed in R. v. Roy, 2012 SCC 26 at para. 28: [28] ...

The actus reus of the offence is driving in a manner dangerous to the public, having regard to all the circumstances, includingthe nature, condition and use of the place at which the motor vehicle was being operated and the amount of traffic that at that time was ormight 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 careexercised by the accused was a marked departure from the standard of care that a reasonable person would observe in the accused’scircumstances (Beatty, at para. 43). The care exhibited by the accused is assessed against the standard of care expected of a reasonablyprudent driver in the circumstances. The offence will only be made out if the care exhibited by the accused constitutes a markeddeparture 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). [26] The Crown argues that having regard to all the circumstances, the following driving behaviours of the Accused constitutesdangerous driving: 1) excessive speed; 2) abrupt lane changes; and 3) failures to signal.

I conclude on the evidence that alcohol was not afactor. [27] Given that there is a conflict in the evidence of the witnesses, the Court is guided by the direction of the SupremeCourt of Canada in R. v.

W.(D.) (1991), (SCC), 63 C.C.C. (3d) 397 at p. 409: 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. [28] I find that Giesbrecht does not have a good recollection of the Accused’s driving.

Geisbrecht’s testimony that theAccused took the exit off of Attridge Drive to get onto Circle Drive and that the Accused stayed in the right-hand lane to about theCircle Drive Bridge was not consistent with either of the other two witnesses. I do not accept Giesbrecht’s speed estimates as reliableevidence given his relative inexperience as a driver and the basis upon which the estimates were made.

Giesbrecht’s credibility is alsobrought into question due to his willingness to testify about matters he did not have personal knowledge of, such as there being ampleroom between the Black Car and the vehicles it pulled in front of.

[ 29 ] While I prefer the evidence of Cst. Scanlen to that of the Accused, I am unable to reject the Accused’s evidence as it was provided in a straightforward manner and remained relatively consistent throughout cross-examination. [ 30 ] On the Accused’s own evidence, he exceeded the speed limit by as much as 25 km/hour while driving in the left-hand lane. The Accused testified that he allowed about a car length and a car length and a half between his vehicle and the vehicles he pulled in front of, which I find is not a safe or sufficient separation between vehicles, travelling at highway speeds.

The Accused denied changing lanes without signalling. [ 31 ] Cst. Scanlen’s observations of the blue pick-up truck and the small maroon car are not in direct conflict with the evidence of the Accused or Giesbrecht, neither of whom were in a position to observe the reaction of the two vehicles. I conclude that the two vehicles reacted defensively to the Accused’s driving by reducing their speed. [ 32 ] In R. v.

Graham , 2009 SKPC 25 , the accused was travelling along Albert Street in Regina, in an area with residential housing on one side and public buildings on the other side, at 143 km/hr, more than double the 50 km/hr speed limit. The roads were clear and dry with moderate to low traffic flow. The accused was observed to make a rapid lane change around another vehicle travelling at moderate speed.

Toth J. found that driving at a speed in excess of double the speed limit in an area occupied by residential housing and public buildings would bring risk to the public and that the accused ’ s conduct amounted to dangerous driving. [ 33 ] In R. v. Huseini , 2011 SKPC 153 , the accused was driving on Thatcher Drive in Moose Jaw at a speed of 140 km/hr in a 60 km zone, then slowed as he approached the controlled intersection of 9 th Ave. N.W. and Thatcher Drive. The road in front of him was open. The weather and road conditions were good.

Finding the accused guilty of dangerous driving Gordon J. stated that: [26] In the within case, the police officer described that there was a bend in the road which adds to the danger. The accused ’ s vehicle was travelling one hundred and forty kilometres per hour, well over twice the posted speed limit in this portion of Thatcher Drive one lane each way. The eastbound traffic was heavy. This is substantially different than driving at this speed on a four lane highway, where the lanes of traffic are separated and the speed limit is one hundred and ten kilometres an hour.

In this case, the driving is within the confines of the city. One has to accept the posted speed limit is sixty kilometres an hour for good reason. The road it not constructed for greater speeds. [29] I can reach no other conclusion other than the accused voluntarily undertook to drive his vehicle and accelerate to this rate of speed on this stretch of road. While the speed of one hundred and forty kilometres per hour was for a short period of time, in my view such conduct is a “ marked departure ” from the standard expected for a reasonably prudent driver.

I do not have any reasonable doubt that the accused was driving dangerously . Mr. Huseini is guilty as charged. [ 34 ] In R. v. Lamoureux , [2008] S.J. No. 626 (Q.B.) , a semi tractor and trailer driven by the accused went through a red light and broadsided a van resulting in the death of two people. The accused saw the advance warning light begin to flash and applied his brakes but was unable to stop his vehicle from going through the red light. The road conditions were good. The accused was not impaired by alcohol and was not speeding.

Dovell J. concluded that while the accused’s driving was negligent, it did not constitute dangerous driving. [ 35 ] The Accused’s driving behaviour must be weighed in the whole of the circumstances. These events took place during rush hour in heavy traffic. The Accused was travelling at a speed of 109 km/hour when he cut in front of the pick-up truck leaving about a car length between the two vehicles. While driving in the left-hand lane, he exceeded the posted speed limit by as much as 25 km/hour. The road conditions were good and there were no other vehicles directly in front of him.

In order to take the Warman Road exit, the Accused had to be in the far right lane. After completing a shoulder check and signalling his intention to do so, the Accused changed into the middle lane at a speed of approximately 100 km/hour, leaving approximately one and a half car lengths between his vehicle and the vehicle he pulled in front of. [ 36 ] I find that the Accused’s driving created a risk of damage or injury to the public. While driving at highway speeds in rush hour traffic, the Accused cut in too closely in front of two vehicles forcing them to take defensive action.

A prudent driver maintains a safe following distance. By encroaching in that space, the Accused put the drivers of the pick-up truck and maroon car in a position where they had to react quickly and defensively, putting them and other users of the roadway at risk. I am satisfied that the Crown has proven the actus reus of the offence beyond a reasonable doubt.

[ 37 ] In R. v. Roy , at para. 36 , the Supreme Court of Canada suggested that the issue of mens rea be approached by asking the following 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. [ 38 ] As to the first question, I am satisfied beyond a reasonable doubt that a reasonable person would have foreseen the risk of the Accused’s driving and would have taken steps to avoid it. [ 39 ] As to the second question I am not satisfied beyond a reasonable doubt that the driving conduct of the Accused is a marked departure from the standard of care expected of a reasonably prudent driver and one that is serious enough to merit criminal punishment. [ 40 ] I therefore find the accused not guilty. _______________________________ S.L.

Metivier, J