Her Majesty the Queen - v. -, 2012 SKPC 100

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2012 SKPC 100 Date: July 18, 2012 Information: 24422574 Location: Nipawin _____________________________________________________________________________ Between: Her Majesty the Queen - and - Kale Lokken Appearing: Mr. T. Healey For the Crown Mr. M. Owens For the Accused JUDGMENT B. MORGAN , J INTRODUCTION: [ 1 ] Mr. Lokken initially faced three counts, all alleged to have occurred October 2, 2010, at Nipawin, Saskatchewan. The impaired operation of a motor vehicle charge, count 1, was withdrawn by the Crown during the trial.

On an earlier oral ruling, I granted Charter relief based on a denial of right to counsel, which had the effect of excluding the Certificate of Analyses that was necessary to prove count 2, the charge of operating his motor vehicle while his blood alcohol level exceeded the permitted amount. As there is no evidence to support that charge, I dismiss count 2. That leaves for decision in this judgment count 3, a

summary charge of:

On or about the 2nd day of October, A.D. 2010, at or near Nipawin in the Province of Saskatchewan did operate a motor vehicle on 1st Avenue West, Nipawin in a manner that was dangerous to the public contrary to s. 249(1)(

a) of the Criminal Code. [2] I will deal with the specifics of the evidence in more detail after I have set out the law. By way of introduction, however, ablue car was observed, driving northwards into Nipawin on Highway 35, by a police officer who was on routine patrol, driving south outof Nipawin, on that same highway. Recording a high speed on his radar unit, the officer turned his vehicle around, and pursued thevehicle, at high speed, into Nipawin. He soon came upon that vehicle, in Nipawin, where it had collided with a tree. The question iswhether or not the evidence is sufficient to prove the guilt of Mr.

Lokken beyond a reasonable doubt. THE LAW: [3] The leading cases in Canada respecting this offence are R. v. Hundal, (SCC), [1993] 1 S.C.R. 867; R. v.Beatty, 2008 SCC 5 , [2008] S.C.J. No. 5, and most recently, R. v. Roy, 2012 SCC 26. Paragraph 45 of the Beatty decisionstates as follows: I deal firstly with the actus reus. The offence is defined by the words of the legislative provision, not by the common law standard forcivil negligence. In order to determine the actus reus, the conduct must therefore be measured as against the wording of s. 249.

Although the offence is negligence-based, this is an important distinction. As we have seen, conduct that constitutes dangerousoperation of a motor vehicle as defined under s. 249 will necessarily fall below the standard expected of a reasonably prudent driver. Theconverse however is not necessarily true - not all negligent driving will constitute dangerous operation of a motor vehicle. If the Court issatisfied beyond a reasonable doubt that the manner of driving was dangerous to the public within the meaning of s. 249, the actus reusof the offence has been made out.

Nothing is gained by adding to the words of s. 249 at this stage of the analysis. [4] Section 249(1)(

a) of the Criminal Code provides: 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 at the time is or might reasonably be expected tobe at that place. [5] I also note, as stressed in paragraph 46 of Beatty, that “... as the words of the provision make plain, it is the manner in whichthe motor vehicle was operated that is at issue, not the consequence of the driving”. [6] The mens rea is dealt with in paragraph 47 of Beatty, as follows: In determining the question of mens rea, the Court should consider the totality of the evidence, including evidence, if any, about theaccused’s actual state of mind.

As discussed at length above [see generally paragraphs 27 through 43 of Beatty], the mens rearequirement for the offence of dangerous driving will be satisfied by applying a modified objective test. This means that, unlike offencesthat can only be committed if the accused possesses a subjective form of mens rea, it is not necessary for the Crown to prove that theaccused had a positive state of mind, such as intent, recklessness or wilful blindness. Of course, this does not mean that the actual stateof mind of the accused is irrelevant.

For example, if proof is made that a driver purposely drove into the path of an oncoming vehicle inan intentionally dangerous manner for the purpose of scaring the passengers of that vehicle or impressing someone in his own vehiclewith his bravado, the requirement of mens rea will easily be met. One way of looking at it is to say that the subjective mens rea ofintentionally creating a danger for other users of the highway within the meaning of s. 249 of the Criminal Code constitutes a “markeddeparture” from the standard expected of a reasonably prudent driver. [7] In R. v.

Roy, the Court reiterated the importance of the “marked departure” test just referred to. The care exhibited by theaccused 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 meredeparture from the standard of care, which would justify civil liability, and a marked departure justifying criminal liability is a matter ofdegree, the lack of care must be serious enough to justify punishment” (see para. 28). [8] In reviewing and explaining the reasoning in Beatty, the Court in Roy stated that the question to be answered in consideringwhether the actus reus is made out is “...whether the driving, viewed objectively, was dangerous to the public in all the circumstances.

The focus of this inquiry must be on the risks created by the accused’s manner of driving, not the consequences, such as an accident inwhich he or she was involved” (see para. 34). The Court in Roy stresses that there must be a “meaningful inquiry” into the manner ofdriving. [9] Roy deals with the mens rea element as follows: “The focus of the mens rea analysis is on whether the dangerous manner ofdriving was the result of a marked departure from the standard of care which a reasonable person would have exercised in the samecircumstances (Beatty, at para. 48).

It is helpful to approach the issue by asking two questions. The first is whether, in light of all therelevant evidence, a reasonable person would have foreseen the risk and taken steps to avoid it if possible.

If so, the second question iswhether the accused’s failure to foresee the risk and take steps to avoid it, if possible, was a marked departure from the standard of careexpected of a reasonable person in the accused’s circumstances” (para. 36). [10] The Court in Roy cautions against a trier of fact making a leap from finding that the driving is objectively dangerous to theconclusion that the offence is therefore made out. A trier of fact can of course make inferences.

However, what must be avoided isautomatically inferring that, because the manner of driving is dangerous, it must constitute a marked departure from the norm. [11] Mr. Owens, on behalf of Mr. Lokken, has provided a brief of law which referred to a number of cases which demonstratethese principles. I have reviewed those cases, being R. v. Rajic, (ON CA), [1993] O.J. No. 819 (Ont. C.A.); R. v.Topping, [1993] B.C.J. No. 2517 (B.C. C.A.); R. v. Francis, [1995] O.J. No. 416 (Ont. C.J.); R. v. MacAlister, [1996] A.J. No. 240 (Alta.P.C.); R. v. Brannan, [1999] B.C.J. No. 2669 (B.C. C.A.); R. v. W.J.M., [2000] S.J.

No. 863 (Sask. P.C.); R. v. Mahon, [2001] O.J. No.719 (Ont. C.J.); R. v. Oughton, [2001] B.C.J. No. 1181 (B.C. P.C.); R. v. Lamoureux, [2008] S.J. No. 626 (Sask. Q.B.) and R. v. Nordby,[2010] S.J. No. 627 (Sask. Q.B.). These cases are all helpful in that they all deal with various aspects of applying the law to a particularset of facts. As a group, they caution a trier of fact from departing from the appropriate legal test.

I would only add that the above-notedcases all pre-date the Roy decision, and I will analyse this case as set out in Roy. [12] Against that background, I am going to review the evidence in more detail. [13] I start with Cst. Ricalton, the officer who first had contact with the blue vehicle. He testified he was running radar onHighway 35, and had just proceeded, in a southerly direction, through the small town of Codette, Saskatchewan.

Specifically, he said hehad just increased his speed to the legal posted limit of 100 kilometres an hour south of that town, when he saw a blue car approachinghim at what he thought was a high rate of speed. He engaged his radar, and obtained a reading of 137 kilometres per hour. He thereforeengaged his emergency lights, pulled to the side of the road, to immediately turn around to pursue the vehicle which was headingnorthwards on the same highway.

His evidence was that, by estimation, he was perhaps one-half kilometre south of Codette when hefirst observed this vehicle. [14] Proceeding northward, the officer testified that he reached speeds in his police cruiser of up to 200 to 220 kilometres per hour,and he testified that he was not gaining on that vehicle; if anything, that vehicle may have been actually pulling a bit further ahead ofhim.

He testified that the speed limit through Codette is 70 kilometres per hour, and based on his evidence, and location of where he firstencountered the blue car, I am satisfied that that blue car went through Codette at some speed in excess of 137 kilometres per hour, oralmost twice the posted limit in that community. [15] The officer did not really testify as to how much traffic there was on the road, other than to say that when the blue carapproached him, that was the only vehicle in the area, and that as both vehicles sped towards Nipawin, he observed the blue car pass twoother vehicles.

Each of those vehicles pulled well to the right, and I cannot conclude that there was anything necessarily reckless in themanner of passing, leaving aside the speed issue. The officer agreed with the suggestion that it was quite possible those vehicles hadpulled to the right because they observed his vehicle approaching them from behind, with the emergency lights engaged. [16] At the point where the blue car passed those two vehicles, the officer testified that his speed was then close to 200 kilometresper hour.

He testified as well that that blue car was, in his estimation, three-quarters to one kilometre ahead of him at all times that the

vehicles were travelling northbound on Highway 35. Under the circumstances, the officer’s comment that, as he was quite engaged in the high speed, and due to the situation he was in, he was not in a position that was conducive to providing an exact estimate as to how far away the vehicle he was pursuing was, is quite reasonable.

Based on the evidence of the officer reaching speeds up to 220 kilometres an hour, which I accept, I infer that the blue vehicle had to be doing at least that same speed while the vehicles were driving towards Nipawin on Highway 35. [ 17 ] I accept the officer’s estimate that, when he temporarily lost sight of that vehicle as it crested the hill going into Nipawin, he was then approximately three-quarters of a kilometre back from that vehicle. As he himself crested that hill, he observed a blue car well ahead of him, at what he called a high rate of speed.

However, I cannot infer, on this evidence, what that speed may have been. [ 18 ] The officer testified that when he observed the vehicle in Nipawin, it was now “several minutes past” the time when he had first seen the vehicle south of Codette, which he testified was 6:51 p.m. I accept that time. I further accept the officer’s evidence that he slowed to approximately 80 kilometres an hour as he continued the pursuit into Nipawin. He testified that Highway 35 turns into 8 th Avenue West, which itself becomes 1 st Avenue West further into Nipawin.

He described the street he was driving down, basically a continuation at all times of Highway 35, as being a main street in Nipawin, with businesses on it. [ 19 ] Cst. Ricalton had testified as well that, shortly after the pursuit was engaged, he had radioed to Cst. Nattrass, a fellow officer, respecting the fact of his pursuit, and provided updates to him. Both Cst. Nattrass and Cst. Ricalton are consistent that these calls were made, and Cst. Nattrass testified that one of the updates came when the vehicles were by the Bungee elevator just outside Nipawin, and a further one came as Cst.

Ricalton passed the Co-op Grocery Store. The final call came from Cst. Ricalton to Cst. Nattrass stating that a vehicle had hit a tree on a boulevard. [ 20 ] There is no evidence as to how far the distance travelled was by the parties, which would be the distance from one-half kilometre south of Codette to the tree on the boulevard where a blue car was located. However, the following evidence is also accepted, and I find: • the initial observation was at 6:51 p.m.; • Cst. Ricalton first spoke to Mr.

Lokken, who was the individual behind the wheel of the car that hit the tree, at 6:56 p.m.; and • several minutes had passed, in the officer’s evidence, during the pursuit. [ 21 ] I find that for most of that period between the first sighting by Codette, and the officer losing sight of the blue car as it crested a hill going into Nipawin, the blue car was driving at speeds in excess of 200 kilometres per hour, which is twice the legal limit on the highway. However, I cannot say with any degree of comfort or certainty what the speed of the blue car was as it headed into Nipawin. [ 22 ] I note that Cst.

Ricalton testified that as soon as he came upon the vehicle which had plowed into the tree, he pulled up to it, immediately jumped out and ran to the driver.

That would take mere seconds; it would not be reasonable to expect he would spend anytime sitting in his car, especially as he had testified that he had a concern, based on the fact that the vehicle was not stopping, that whoever was driving it would exit the vehicle and run away, a totally legitimate concern, in my view. [ 23 ] Thus, assuming three minutes driving at 200 kilometres an hour, which I think is reasonable, followed by a lower speed immediately prior to the collision, I estimate that the total distance travelled during this pursuit was approximately 10 kilometres.

However, that is admittedly a loose number, and the evidence of the speed on the highway, which I am comfortable was approximately 200 kilometres per hour, does not determine what the speed was in the town or, critically, on 1 st Avenue West, the site that the informant has particularized as where the dangerous driving occurred. So whereas it is open to me to infer the speed on 1 st Avenue West, as that speed pertains to the charge before the Court, I have insufficient evidence to do so, at least based on the officer’s evidence.

Although he came upon an accident scene, and although I am satisfied that the blue car that hit the tree was the same blue car that the officer was chasing, the officer simply does not know how the accident occurred, or how Mr. Lokken was operating his vehicle on 1 st Avenue West. [ 24 ] As to the condition of the roads at the time, I accept Cst. Ricalton’s evidence that it was a clear evening, there had been no rain, the roads were dry, and that the condition of the roadways over the entire time of this pursuit was “generally good”, to use Cst. Ricalton’s words.

I find that this observation was meant to include 1 st Avenue West in Nipawin.

[ 25 ] As to the lighting at the time, Cst. Ricalton testified that “it wasn’t dark yet”, when he first encountered the blue vehicle south of Codette, although he had testified that things were getting dark. Some photos were taken by Cst. Nattrass at approximately 7:00 p.m., and those photographs certainly indicate that it was getting darker. I would describe the lighting generally to be moving rapidly into twilight, considering the time of year. [ 26 ] I would also note that any times referred to by Cst.

Nattrass were all estimates; he did not provide exact times that he did things, leaving me to rely only on Cst. Ricalton’s evidence as to those times. [ 27 ] Cst. Ricalton could not recall what day of the week October 2, 2010 was, and he did not provide evidence as to what other vehicles, if any, he may have encountered on the road, other than to refer to the two vehicles that he had observed were passed by the blue car.

However, I accept that the road leading into Nipawin is a road on which there are businesses on each side of the road, leading one to infer that it would be reasonable to expect traffic to be on those roads, especially in the early evening hours.

Further, the speed limit on the highway was 100 kilometres per hour, which, coupled with the fact that the road was in good shape, leads me to conclude that it would be reasonable to expect there to be other vehicular traffic on the highway, and reasonable to infer that there would be vehicular and pedestrian traffic on the route taken by the driver of the blue car. [ 28 ] It is clear that the blue vehicle sustained damage, based on both the photographs and the evidence of three witnesses. Cst.

Ricalton testified that the condition of the vehicle was “severely damaged from the impact with the tree”, primarily on the passenger side, and Cst. Nattrass testified, when he came upon the scene, that there was damage to the vehicle. A third witness, 18 year-old Owen Beasse, testified that the vehicle was damaged. Reference was also made by the witnesses, as is apparent in the photographs of skid marks going through the grass leading towards the tree. Based on the evidence primarily of Cst. Ricalton and Mr.

Beasse, I am satisfied that the blue car, as it came around a curve on 1 st Avenue West, lost control and basically turned 180 degrees in direction, sliding across the boulevard and impacting with the tree. [ 29 ] As for the particulars of the accident itself, Mr. Beasse is the only witness who actually observed it. His evidence was that he was out for a walk at approximately 7:00 p.m., when he heard the “squealing of tires”, and referred to a car that “swerved into a tree in front of my house”.

His impression was that the vehicle “seemed to be out of control”, referring to it “swerving from side to side” in “exaggerated and long” movements. [ 30 ] As for the speed that he observed, he said he thought it was “extremely fast”, due to “the extremely quick” time for it to get to him. [ 31 ] As for lighting conditions at that time, he stated that “everything was visible”, and he said the street was “pretty dry”, commenting that it had not been raining, and that the pavement and grass were both dry. [ 32 ] Mr.

Beasse was concerned that that vehicle might hit him because, as he stated, when it came around the corner, it was coming toward him, such that he jumped out of the way. [ 33 ] In cross-examination, Mr. Beasse agreed with a number of suggestions of defence counsel, primarily dealing with the exact location of the vehicle, the fact that it did not actually come close to hitting him, and that he couldn’t say for sure if the marks on the grass were there before or after he first saw the car. Further, Mr.

Beasse said in cross-examination that he couldn’t say if the vehicle was exceeding 50 kilometres per hour, nor could he say that it was speeding when it went by him. Nonetheless, the overall circumstances as described by Mr. Beasse generally correspond with the observations of both Cst. Ricalton and Cst. Nattrass as to the location of the collision with the tree. There can be no doubt that the vehicle came off the road, spun 180 degrees or so, and hit a tree.

Why it did so is not exactly clear. [ 34 ] The fact that the blue vehicle collided with the tree does not necessarily mean the vehicle was being operated in a manner dangerous to the public; as pointed out earlier; it is not the consequences of the driving which proved the charge. However, I can

certainly look at that as one of the factors to consider. In my view, in conjunction with the other findings I have made, there is simply norational reason for this blue vehicle to have jumped the curb, done a 180 degree turn, and slammed into a tree. That would certainlymake one suspicious that the vehicle was driving at an excessive rate of speed, and that speed contributed to whatever else, if anything,caused the accident to occur.

This is particularly so when one considers the driving immediately prior to the collision, that is, on thehighway into Nipawin. [35] Looking at the enumerated factors in s. 249(1)(a), I cannot say that the actus reus of the offence has been made out. TheCrown has established that this blue car was driving at an excessive rate of speed for a lengthy distance on a highway, culminating in thevehicle driving down a main street of Nipawin, on which there were businesses located, and ultimately hitting a tree. The evidence of Mr.

Beasse, the only individual who actually saw what happened on 1st Avenue West, lacks reliability, as was amply demonstrated during cross-examination. I can’t conclude, nor infer, based on the evidence, what happened on 1st Avenue West in Nipawin. [36] Although I rely on speed as part of the overall circumstances here, and in particular the excessive speed at which Mr. Lokkenwas operating the vehicle on the highway, at least, the determination of dangerous operation of a motor vehicle is not based merely onspeed. It is a factor, and as was said in R. v.

Skye, 2012 SKPC 1 , 2012 SKPC 001, speed can be “an aggravating factor”. In myview, driving at the speeds that this individual did was extremely foolhardy. However, that driving was on the highway, and I cannot infer the speed of the vehicle on 1st Avenue West. [37] On all the facts, I am not satisfied that the Crown has established this offence beyond a reasonable doubt, and I dismiss thecharge of dangerous operation of a motor vehicle. Dated at Nipawin, Saskatchewan this 18th day of July, 2012. B. Morgan, J