R. v. Gill Date:, 2014 BCPC 105

Citation: R. v. Gill Date: 20140227 2014 BCPC 0105 File No: 77594-2KC Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. PARMJIT KAUR GILL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE W.G. MacDONALD Counsel for the Crown: J. Barbour

Counsel for the Accused: D.H. Silverman Place of Hearing: Abbotsford , B.C. Date of Hearing: July 18, August 29, 2013, February 26, 2014 Date of Judgment: February 27, 2014 [ 1 ] THE COURT : This is a trial involving the accused, Parmjit Kaur Gill. She is charged on a two-count Information. The first count in the Information basically alleges that she drove a vehicle in a manner dangerous to the public on the 11th of May 2012, that charge, contrary to s. 249(1) (

a) of the Criminal Code . Count 2 alleges that on that same date, she committed an assault against Hirdeypal Gill, her ex-husband who goes by the name Dave Gill, by using a weapon; to wit, a motor vehicle, contrary to s. 267 (

a) of the Criminal Code. [ 2 ] The trial is unusual for a couple of reasons, the first of which is that it is a trial which was commenced by then Judge Romano, who has since retired. The proceedings took place, I believe, over two days, commencing on the 18th of July 2013. Judge Romano subsequently retired and I took over the case and was provided a transcript from that earlier portion of the trial. There was no objection to my following the provisions of the Criminal Code which allow one judge to take over the conduct of another trial where the original judge is unable to continue, as he was in this case.

So the trial is unusual in that aspect, but frankly, that part of the case did not cause me any particular issue. The transcript is fairly clear and really is not that contentious, with the exception of one area, which I will touch on. [ 3 ] The other unusual aspect to this case is the actual incident involved two vehicles coming together in a collision under Highway number 1 on Sumas Way in Abbotsford. It is not such an unusual situation that two vehicles can collide, but the fact is that one of the vehicles was driven by the accused and the other vehicle was driven by her ex-husband.

The Crown's theory, in part, if not in whole, is that the accused deliberately drove her vehicle into her ex-husband's vehicle, and in effect rammed it or used it as a weapon, as Count 2 suggests. The Crown may rely on an alternative theory that even if she did not deliberately ram it, her actions in driving in the manner in which she did still amount to dangerous driving, but the major thrust of the case is that this was a deliberate action.

As I say, it is a bit unusual because if it was a deliberate action, it would appear that the meeting of those two vehicles at that point in time, at that precise moment, which was really brief, was coincidence, and again I will get into that as I review some of the evidence and my findings of fact. [ 4 ] I am going to deal with the transcript. It contains the evidence of two police officers, Cst. Dhillon and Cst. Young.

Neither one of them saw the accident but they attended the scene of the accident, and while they do describe various pieces of debris on the road and scratches on the vehicles and where they found the vehicles, nothing much turns on that. [ 5 ] Particularly helpful, Cst. Dhillon refers to statements that he took from the accused, and they were the subject of a voir dire. Admissibility and voluntariness were not in issue and as a result, the statements became part of the evidence in the trial. Cst. Dhillon describes, at pages 11 and 12 of the transcript, basically what she told him as he spoke to her at the scene.

Line 42 on page 11: Q All right, so you approach her. What does she say? A Just that she was turning left in the left-turn lane to go -- Q I'm going to ask you to slow it down because I need to take this down, Staff Sergeant, please. Sorry, go ahead, Staff Sergeant. A She was attempting to get into the left-turn lane to turn -- to get on the eastbound onramp to get to Number 1 Highway. She said she was going to Merritt, back home. She said her ex-husband was in that lane and he sped up and crashed into her car.

Then there is considerable discussion about whether she describes actually being in that lane already and trying to get into a left-turn lane, which is upcoming after the underpass, or overpass, depending on your point of view. I frankly may refer to it in either way, because if you are on top of it, it is an overpass, and if you are underneath, it is an underpass. In any event, it is a point where Sumas Road passes under Highway 1, which is what we are talking about here. Just as you go through the underpass, there is a lane that is observable on the maps and photographs.

There are two southbound lanes and then a third lane on the left-hand side, which allows vehicles to turn in there and go eastbound on Number 1 Highway, which is where the accused said she was heading. Really that is all the evidence we have about what her intention was and where she was going. [ 6 ] The accused did not give evidence in this case, and as the Crown concedes, she is not required to give evidence. I cannot draw any adverse inference from the fact that she does not give evidence, but I do get some evidence from her through the evidence of Cst.

Dhillon. [ 7 ] There is also a civilian witness who gives evidence, and that is Shelby Pickett. Her evidence may or may not be relevant, depending on what weight I attach to it and why. There is a description by her of coming into contact, not necessarily car-to-car, but close contact with another vehicle. That occurs some short period of time before the ultimate accident on the underpass.

There is a difference of opinion between Crown and defence as to exactly what it is she said she saw, but I am satisfied, having looked at all of the direct examination and the cross-examination, that she saw a vehicle, that she was proceeding on the Mission/Abbotsford Highway, she had a green light when they came to George Ferguson, which is a crossroad at that point, it crosses the Abbotsford/Mission Highway, and as they are going through the green light, a car comes from her right, from George Ferguson, making a right turn in front of her. She said basically she, that is, Ms.

Pickett, is in the left lane, the centre lane of the two southbound lanes, and that the vehicle, when it makes its right turn, turns partially into her lane. She said I had to slam on my brakes, and she actually thought that there may have been an impact. Her mother kind of looked out the window. It was later determined by her and her mother, by looking at their car, that there really was no impact, but it was close.

[ 8 ] She sees the vehicle then proceeds forward, and she basically said that the vehicle ran a red light. That was her evidence in chief. She then goes on to describe how she drove on some distance, the amount of distance was not clear, but she had stopped at a number of lights. She lost contact with the vehicle and ultimately comes upon the scene of this motor-vehicle accident on the underpass under Highway 1. At that point in time, she sees a vehicle on the side of the road and she sees a woman associated to that vehicle.

She described that woman as having a ponytail, and she basically said I saw the ponytail and I am satisfied a hundred percent it is the same person. She was not really questioned on that, but frankly, on the issue of reliability, I am not satisfied that she can say with any degree of certainty that the car she saw run through the red light, or amber light, back when she first had contact with it and the car that almost collided with her, is one and the same car as driven by the accused. I say that because she does not really know the colour of the car, at least not with any certainty.

She does not know how many doors it has, she does not take a licence number, and her ability to observe and see the driver of that vehicle would be very minimal. This vehicle turns in front of her. She does not see the vehicle approaching, she is not aware that it is a problem. She never indicates that she saw the face of the person.

She just assumed it was a female because of the ponytail, and later on when she sees a car of perhaps a similar shape or colour or something, she sees a woman with a ponytail and comes to the conclusion 100 percent it is the same person. [ 9 ] I have every reason to believe that she is giving her evidence to the best of her ability, and with respect to that sense of credibility, she is 100 percent truthful, but I really do not find it extremely reliable.

It may not make a great deal of difference in any event, because I find that all of her observations were a considerable distance from what ultimately happens, and that even if it was the vehicle driven by the accused, it really does not assist the court very much in showing a pattern of driving. It shows some sort of carelessness by the driver of that vehicle, if it was the accused, but I now have a map which has been marked as Exhibit 5 in this case, showing an overall view of the scene, and it clearly shows that the incidents that she described took place a very long distance from the freeway underpass.

Unfortunately, there is no scale on the map, but if you look at some of the other exhibits we have here; for example, Exhibit 4, which is a map from the computer, it says "Bing Maps" on it, so it would be sort of a satellite image, and one can tell from looking at the size of the houses, the size of the freeway, you can get a pretty good idea of the distances on that map.

I can see, for example, that the distance from the Trans-Canada Highway, looking at the entrances and exits, Lonzo Road, Delair Road, all of which appear on that map, that we are talking several hundred feet, we are talking about a city block or more between those areas.

And then if we compare that to the map which is Exhibit 5, you can see that the distance, for example, shown in the satellite picture from the freeway to Delair Road, compare that to the distance back along Gladys Avenue all the way back to Mission/Abbotsford Highway and the two intersections in question, namely George Ferguson Way and Essendene, are a considerable distance from where the accident finally occurs. That, of course, also adds to my concern that I am not satisfied that she can identify this vehicle as being one and the same. She loses sight of it during all that period of time.

She is not following it through the traffic and kind of keeping up. She just does not see it after it leaves the area where it goes through the red light until there is a collision. She does not see the collision either, she just comes upon the accident scene. [ 10 ] There was considerable dispute and submissions by Crown and defence as to which red light the witness, Shelby Pickett, saw the vehicle go through. And when I say "red light" I am satisfied that in cross-examination she agreed it might have been an amber light that she went through, and so that diminishes her evidence somewhat of careless driving.

I am again satisfied, on the whole of her evidence, that she is clearly not able to say she went through a red light, although that was her first observation, and so it leaves the main observation she makes is that this vehicle, after turning right in front of her, moves over into her lane and she has to slam on her brakes. Again, evidence of some careless driving, but not, in my view, evidence that would take it to the level along the continuum of being dangerous driving, and even if there is a collision, that does not necessarily mean dangerous driving within the

definitions. [ 11 ] So as to which intersection it was, I was referred to page 73 of the transcript, in which she is asked which red light, and she starts to say the red light for Marshall, and then clearly, right thereafter, indicates she is not sure what road it was.

She says, "No, South Fraser Way -- is that South Fraser Way or Old," and she does not say "Old whatever", but we do know from the map that Old Yale Road is the next intersection beyond George Ferguson, and she says, "Or Old, I don't even know the street name." But she describes basically this as being the next light right after Gladys and the Mission Highway. It was put to her in cross-examination that the next light is in fact the light at Essendene and the Abbotsford/Mission Highway, and she agreed that that was the light. [ 12 ] I also note, when I look back at the officers' evidence, Cst.

Young spoke to the Picketts at the scene, and he says they described a situation where they had been involved or observed a motor vehicle driving through Abbotsford in the area of Gladys and Essendene. That vehicle was driving at a high rate of speed and blew a red light at Essendene and Gladys. So that is apparently what she told the police officer, and that, combined with the evidence that she gives both in direct and cross-examination, makes it pretty clear that she was talking about a vehicle that had gone through either a red or amber light way back before she ever gets near the freeway or Marshall Road.

Again, she tells Cst. Young how she lost sight of the vehicle, but continued to go along themselves onto Sumas Way and got stopped at all the red lights and eventually come up to this accident scene. So I refer to her evidence, but it does not help the court very much, for the reasons I have given. [ 13 ] We then get into the portion of the case where I heard from witnesses. I first heard from Gurmit Gill. Gurmit Gill is married to Dave Gill, who was the driver of one of the two vehicles involved. They have been married since 2005.

They have one child, and another one who unfortunately died, but they have a child who is two-and-a-half now. They live in Abbotsford. [ 14 ] She describes how on this particular day, they had had lunch at the A&W, and as I learned later from Mr. Dave Gill, who also gives evidence, that the A&W was right close to the intersection of the continuation of South Fraser Way and Sumas Way, again which shows clearly on the map, Exhibit 4.

They apparently went through the drive-thru, they eat in the parking lot, and they then head off, going southbound, heading towards Costco, which would take them along Sumas Way and under the freeway, Highway 1, and take them right to the scene of the accident. [ 15 ] They apparently hit all the red lights between there and the freeway. There is a fair amount of traffic on the road, it is fairly congested, and they do not see the vehicle driven by the accused until about one second prior to the accident.

Now, that is important, because one of the theories of the Crown, and I think the main theory, is that this was a deliberate action of the accused in smashing into the vehicle of her ex-husband, presumably because she hates him, and there is some evidence about that. But if that is true, it would have had to be a decision, in my view and my analysis of the evidence, that would have had to be made within the two or three seconds or whatever short period of time there was from the time she comes alongside this car and the accident occurs, because it is clear from

the evidence that it would have been virtually impossible for her to kind of stalk her husband, if you will, or follow him. There is no suggestion anywhere in the evidence that she had hung around the A&W parking lot and followed him out of there. Of course it is possible, but there is no evidence of that. The only evidence the Crown calls and asks the court to believe is that it is one and the same vehicle as had this near collision back at George Ferguson Way and the Abbotsford/Mission Highway, and that may be true, it may not be true.

If it is true, again, it just leads further to the conclusion that the meeting of these vehicles under the underpass was coincidence or a mere chance. And with all the traffic on the road and stopping at red lights, it is almost impossible to imagine that this was designed in some way by the accused to track down her ex-husband and smash into his vehicle. So if she did make that decision, it would have been a last-minute decision, in my view of the evidence. [ 16 ] In any event, Mrs. Gill is in the backseat of the vehicle because her child is in the backseat. She is with the child, her husband is driving the car.

She says it is around one in the afternoon, and she says the front passenger seat is empty. The first thing she sees is a female in a car beside them leaning out the window with her arm out of the window and kind of part of her body outside the window, and she is, as she said, fingering them; that is, she had the middle finger upraised on the hand which was out the window, whichever hand that was.

She says at that point her husband says, "Oh, that's Parm fingering us," and just about the same time, she said the car was coming towards them, getting closer and closer, and she sort of leans over to cover her child, she says, to protect them. [ 17 ] She says they heard a noise as they went under the underpass. She thought they hit the tunnel, and there was a collision between the vehicles, that basically the driver's side of the vehicle driven by the accused comes into contact with the passenger's side of their vehicle, and there is no doubt that did occur.

She said at the time that this incident occurred that she could see the back of the car. That was her first comment in direct examination, that the vehicle driven by the accused was ahead of them, and she said, "I could see the back of the car." Later, in cross-examination, she said, "Well, I could see parts of the back of the car, I'm not certain that I could see the very back of the car or the trunk and turn signals and things like that." She seems uncertain of that.

But on all of the evidence, and the physical evidence of what occurred, there seems little doubt that at the time of the collision, and probably just before the collision, the vehicle driven by the accused is at least slightly ahead of the vehicle driven by Dave Gill. [ 18 ] There is no reason really to disbelieve the evidence of Gurmit Gill. It is suggested by the Crown that she was a credible witness. She did not exaggerate or minimize or anything like that.

I do not find that 100 percent true, and the main problem I had with her evidence was that with respect to the lady reaching her finger out the window, she basically started to say, "I didn't know who she was, I had never met her." This is a lady that has been in the life of her and her husband for years and years and years, and the relationship has been..."strained" would be a mild word, because there has been court actions, divorce actions, actions with respect to children and access to children and delivering them for visits.

She eventually agrees that she had seen the lady before, and she knew it was the ex-wife of her husband, but she tried to give the impression that she really did not know her, had never met her, just sort of some lady that was of only minor interest to her that fingered her, so to speak, or her husband, and I just find that a little hard to believe. I have no doubt that if she saw her anywhere she would instantly recognize her that she would know in a heartbeat who this lady was.

Maybe nobody formally ever introduced them, but she knew a hundred percent who she was. [ 19 ] The other unusual part of her evidence which perhaps affects somewhat her reliability and credibility is that after the accident, the first person she calls is her brother-in-law, who is an RCMP officer, not 9-1-1, and he actually attends the scene, apparently before the police get there. That is how close he is. Why she does that is unclear.

She said she wanted some support, but it was a strange thing to call him at that point in time. [ 20 ] Finally, I must comment on her evidence that although I clearly recognize that people can receive physical and psychological injuries in many ways, it did seem, at the very least, unusual to me that when asked if she was injured in the accident -- frankly, before she answered I expected the answer "no" because of the nature of the collision. It just doesn't look like, looking at the two cars, it was a very violent collision.

Despite that, she said that she hurt her left shoulder and suffered psychological damages and has been unable to work for the past two years basically. She was a legal assistant and says she is unable to work. That, of course, is possible.

I can only say that by the nature of the accident, it seemed at least unusual that she would be so psychologically scarred that she could not work for two years. [ 21 ] Those things that I have commented on do affect her credibility to some degree, and therefore when I hear her say "the car veered towards us" and compare that to the car coming closer and closer, I really cannot say which is more accurate. But her credibility is affected. [ 22 ] The main witness in this case for the Crown is Hirdeypal Singh Gill. He goes by "Dave" so I will call him Dave Gill. He is the ex-husband of Parmjit Gill, the accused.

They were married from 1991 to 1999. I call him the main witness because he was the driver. He was involved in the accident, he saw the collision and he gave detailed evidence as to what occurred. [ 23 ] His credibility and reliability is greatly at issue in this case.

Defence counsel spent a great deal of time on that issue and I will touch upon it because it is important. [ 24 ] The witness, Dave Gill, had sole custody of originally the three children of his marriage with the accused, but at the time of the incident there were only two that he had sole custody of because the third, named Lucas, had been apprehended by the Ministry at that point in time; in fact, about a year before. That apprehension was the result of an allegation of assault by Lucas against Dave Gill.

He alleges that his ex-wife, the accused, was involved, in effect, of putting evidence, if you will, in the mouth of Lucas, that she was involved in the whole reason behind the apprehension and that once the Ministry got involved, she continued to get involved in that case and tried to get custody of Lucas through that case. He says she failed. [ 25 ] In describing the accident, his description is not terribly different from that of his wife, the rear-seat passenger.

He says basically he does not see this vehicle driven by his ex-wife until she is pretty much beside him and just a little bit ahead of him, and he sees again her arm out the window, giving him the middle finger. That is two witnesses who see that. It likely occurred; I have no reason really to believe it did not occur.

He said, "Her vehicle was a little past my vehicle, maybe a couple of feet ahead." I assumed from that, although it was not clarified anywhere, that he meant that the front of her vehicle was two feet ahead of the front of his vehicle, rather than the whole car was two feet ahead of his, but frankly it was not clarified so I do not know for sure what he meant by that. He

said he did recognize her at that point in time, and he says within one second of that, her car moves to the left. He did not say "swerved" but he said the car moved to the left and virtually pinned his vehicle or pinched his vehicle between the concrete underpass and the curb there, and the vehicle driven by his ex-wife.

He then says, being pinched into that situation, kind of as a defensive action, he yanked his steering wheel to the right, and what happens is that his vehicle, which is front-wheel drive, the tires kind of mount the vehicle of his ex- wife and start to climb the vehicle, and a very short time thereafter, they come apart. His vehicle kind of drops and at that point in time he gets ahead of her, he says, and the vehicles ultimately pull over to the right-hand side of the road.

There is frankly a discrepancy on the evidence about how that occurred, whether or not he sort of swerved around her and got ahead of her and cut her off, or whether he was still in the left lane when Ms. Pickett, for example, arrives and she suggested they move over to the right, and they all did. Not much turns on that, but there is a discrepancy at least in regard to how that occurred. [ 26 ] He said that the vehicles came apart when at some point she turned back to the right and the vehicles released. He then went on to say that her vehicle was much larger in dimension and weight compared to his vehicle.

He said he was driving a Saturn, she was driving a Chrysler Cirrus, and since his credibility is at issue here, and his reliability is at issue, one of the things defence counsel suggests I look at is the fact that he tended to minimize certain things in his evidence, exaggerate others, and this is one of the things that defence counsel says Mr. Gill exaggerated. [ 27 ] It was put to Mr. Gill in cross-examination that these vehicles are a very similar size. Mr. Gill disagreed.

It was then put to him that in fact if you look at the dimensions of the vehicles, if you were to look it up, it was suggested that the Cirrus vehicle was only three inches longer than the Saturn. His answer was not, "Oh, that is not true," or, "That is a lot," or anything like that. What he said is it was larger. Well, I guess it was larger, if the three inches is correct, but it does not fit within his description of this way bigger vehicle.

"Much larger" was the words he used in direct examination, and I do not find, frankly, three inches to be "much larger". [ 28 ] I have examined all of the photographs that I have of the two vehicles. They are contained in Exhibit 1, picture number 2. The vehicles do not look a lot different in size. Picture 4, the vehicles do not look a lot different in size. Both are vehicles that I would personally describe as either compact or mid-sized vehicles. They are not large vehicles. Both are four doors, and if there is a difference in size, I do not think it is noticeable and certainly do not agree with Mr.

Gill's description that it is much larger in dimensions and weight. With respect to the weight, I do not have any evidence one way or another of the weight of the vehicles, I can only comment that they look relatively the same size to me. [ 29 ] The witness Dave Gill was then questioned in cross-examination at great length about his record as an RCMP officer. He is currently suspended from the RCMP, but he has a long and very checkered history with the RCMP. He apparently joined the RCMP in 1989.

He went to the Depot in Regina, and at the Depot in Regina there was already an allegation made against him that resulted in some sort of disciplinary action. He went on later to try and explain why he did that, and defence counsel asks the court to look at the fact that Mr. Gill always seems to have an explanation or a reason for anything which is negative, and I must say I did find that was his position on virtually everything that was put to him. All of the reviews that were made he had an explanation for, some of which may be legitimate, some of which may not.

Is he a witness who appeared to be fair, unbiased, independent? I find that he was not. I have considerable trouble with a lot of his evidence and it really relates to numerous things that he said. [ 30 ] He basically blamed his ex-wife for all of the damage done to his career and he ignores the fact that his career was damaged considerably just by the incident that takes place while he was in Depot. They were married in 1991, but in 1999 the accused, who was married to him at that time, made an allegation of assault against him.

He claims that that was later recanted by her and she said she lied in a statutory declaration. That may well be the case, but he basically says "the damage was done to my career", and then he blames her basically for everything that happens thereafter.

He says basically, "As a result of that, a review was made of any files where I had used physical force." Well, I have no doubt that such a review was made, but to blame it all on his wife seems to me to be inaccurate. [ 31 ] There were five allegations made against him involving inappropriate actions, intoxication, use of physical force, and they were all dealt with over the coming years, firstly by an adjudication board, and I am going to be careful not to refer too much to the findings of the adjudication board, the reason being that I cannot say he was ultimately cleared of the charges because I do not know.

I have not read all of the decisions from the Court of Appeal, but I do have evidence from him, and no other evidence, to the effect that the adjudication board was criticized for the way they handled the matter, for the findings that they made and for the determination of what the appropriate penalty was. [ 32 ] The way all of that happened, in brief

summary, is that he was, as I say, originally suspended from duty. He said he was ultimately acquitted of the assault charge in Maple Ridge in 2001, that he went through Service Court with the RCMP, seeking his dismissal on these five incidents, that he was ordered to resign or be dismissed. He appealed that, and a different board recommended that he return to duty; however, the Commissioner ignored that, as he has the right to do apparently, and ordered the dismissal of Mr. Gill from the RCMP. Mr. Gill did not accept that, he appealed to the Federal Court, where he says he basically won.

The court made the comments I have indicated, and ultimately the RCMP appealed that to a Federal Court of Appeal where again the decision, according to Mr. Gill, was upheld in his favour. As a result of all that, he was reinstated in 2008. [ 33 ] He was posted to the Chilliwack RCMP; however, his troubles continued. There was the assault allegation on May 10th, 2011 where his son alleged that he was assaulted.

He also went through the very unfortunate situation in which his daughter died, and between the assault and the death, he said he took a sick leave and then he took a stress leave, but while on stress leave the allegations came up and he was again suspended with pay, and that suspension is ongoing. [ 34 ] He agrees that he entered into a peace bond relating to some firearms in his house, but in the cross-examination about those issues I found that the witness was, to use his words, argumentative, as opposed to confrontational.

I say "his words" because the accused denied being confrontational because he equated confrontational to meaning leading up to a physical altercation. So in that sense the accused, in answering these questions, was not confrontational, but he certainly was aggressive. He aggressively denied numerous things put to him, some of which might be reasonable and some of which I find are unreasonable. For example, it was put to him several times that he should be aware of this decision of the adjudication board. He denied it at first. Ultimately he agreed he is aware of it.

It was suggested to him that there was a decision made and he tried to say no, there were five separate trials and five decisions. That is not really the case, and it is pretty clear, reading the adjudication board matter, that while the five incidents may have

been dealt with individually within their decision, this is one adjudication board looking at all five incidents and giving one decision at the end, and he really fought tooth and nail to ever admit that. Finally did agree, but as I say one looks, in determining the credibility of a witness, at such things as are they willing to admit things which may be contrary to their best interests, and I find that in each and every case where incidents were put to Mr.

Gill which might cast him in a bad light, that in general he denied those or minimized them or tried to explain them. [ 35 ] There is an exception, and that is with respect to one of the five incidents. He said that he admitted that and admitted that he was intoxicated, and he regrets his actions. He admits also that he did not show any sort of remorse in that he did not seek anybody out or apologize to anybody, despite the fact that he admitted he was wrong in those incidents, and in those incidents he was critical of his fellow RCMP officers. One would think that he might try and seek them out and apologize.

He admits he did not. [ 36 ] The other very important factor that I consider in looking at his reliability as a witness is the suggestion made to him basically that he hates his ex-wife and that she hates him, and that there is a great deal of animosity between them. His answer was, "No, I have no ill feelings towards her, I just want her to move on and enjoy her life." I frankly find that to be a lie. As a matter of fact, Mr. Silverman, defence counsel here, suggested that is a lie, and Mr. Gill said that he took offence to that, to suggest that he was lying.

Well, he may take offence to it, but the court also finds that he is clearly lying when he says he has no animosity towards his ex-wife. I would not blame him for the animosity. She has been far from blameless in this action. He alleges that she tried to kill him with a sword while he slept, and that is what led up to the divorce. One would think that with the normal, reasonable person, that would cause a lot of animosity. He then starts the divorce proceeding and she then, according to him, drags it out forever, making all sorts of applications.

Again, divorce proceedings are very stressful, and for somebody to have ill feelings or animosity towards the other side would be normal, but he denies that. All that animosity and all of that interaction continues over years thereafter where they are constantly battling about kids and access. [ 37 ] He says basically, "I tried to take the high road," and "I didn't get involved," and "I don't know where she lives," and all of those things, but it is clearly obvious that he did have interactions with her, directly or indirectly.

A lot of that comes out, for example, in a tape that he made from a phone call made to his residence about a week before the incident in which she makes all sorts of rude, obscene comments about him and his wife and their daughter, and there is no question that those comments are extremely offensive. I cannot attribute them to the accused specifically, but the witness does. He says, "This is what she told me." I never heard the tape, and the transcript referred to in court I never saw. It is not part of the evidence.

But the accused clearly believes those remarks were from her, and yet he would take the position before the court that he just wants her to enjoy her life and move on and he has no ill feelings towards her. As I say, I do not believe that for one second. The word "hate" was used.

I do not think that is too strong in this particular case, but at the very least, to suggest that there was a great deal of animosity between the two of them would be a fair statement and he totally denies that. [ 38 ] All of those things, his credibility, his reliability, do have an effect, because I have to try and determine to the best of my ability what happened in that couple of seconds leading up to this accident. As I indicated earlier, I find that the evidence of Ms.

Pickett about what happened some considerable distance from the scene is really of little help, so I would have to conclude that the actions of the accused were deliberate, that she deliberately rammed his vehicle. I say I have to find that because there is no other evidence of dangerous driving, and dangerous driving is not sort of a momentary thing.

It could be a momentary thing if it was some deliberate action such as alleged here, but other than that, if, for example, she made an error in judgment and thought he was going to slow down and turned into that lane, or he speeds up and she misjudged that, perhaps she thought she had room, all of those things would be negligent perhaps, but they would not amount to a marked departure from the norm within the definition of dangerous driving. [ 39 ] The only thing that would explain all of that and could be dangerous driving is if she deliberately drove into the vehicle.

Well, her statement through the police officer that she made at the time was nothing along the lines of, "I deliberately drove into him." There is no witness at the scene who hears her swearing at him or threatening him or saying anything which would give them reason to believe that she had deliberately driven into him, so from her perspective, and the only evidence I have of her perspective, there does not seem to be any deliberate actions. If I look at the evidence of Mr. Gill, clearly he thought or believed, as he said, that this was a deliberate action on her part.

But if you look at what the Crown says is corroborative; namely, the physical evidence here, I have to take into account that there is no traffic investigator or expert witness called to describe what all of these dents and scratches are, so I have to look at it and determine really along the lines of what any reasonable person would conclude, looking at these vehicles, what happened. [ 40 ] One would expect that if she deliberately rammed into him that there would be, in my view, some evidence of physical damage to her vehicle over and above what is shown here.

There is a considerable amount of damage to her vehicle, but Mr. Gill frankly admits that virtually all of that damage is caused when he yanks his wheel to the right and his wheel starts to climb up over her vehicle. That is what all the damage is from. Other than that, there is a couple of minor scrapes that one can see here, which would tend to indicate that the vehicles, yes, they probably came together, but basically side-by-side. There was not any angled movement of this vehicle into his. Both vehicles received some minor scratching.

His mirror comes off, and his hubcap, but most of the damage, it would seem to me, and by the admission of Mr. Gill, is caused by him swerving the steering wheel to the right. He says he did that because he was pinched in that area, but in order to find the deliberate action, I would have to accept all of Mr. Gill's evidence in its entirety, and find that she basically saw who it was. He cannot say if she identified him, but she fingered him. But she presumably knew it was him.

That would be a presumption that I would have to make, and that she deliberately swerved in and purposely hit him and drove him into this concrete area. [ 41 ] The defence suggests to Mr. Gill that the vehicle driven by the accused was ahead of him and one of the things that was open to him, if he saw that she was moving towards him, is just to slow down or hit the brakes. Mr. Gill does not do that. Presumably he says there is insufficient time.

It is also suggested to him that because he sees her, sees who it is and he recognizes her, that he deliberately sped up and in effect prevented her from turning into his lane, and that the collision which then occurs is a result of his actions, rather than her actions. [ 42 ] Having examined all of the evidence, I am unable to conclude on all of the evidence that this was a deliberate action by the accused. She was ahead of the vehicle. Conceivably, on the evidence, one possibility is that she was intending to turn into that lane and go on the freeway and head eastbound, as she had indicated.

Another possibility is that the vehicle driven by Mr. Gill failed to yield to

her in any way and either stayed there and got hit or perhaps even accelerated. He certainly turned to the right to cause some of this damage. I am not suggesting here that Mr. Gill is the fault of this accident, I am merely suggesting that that is one of the possibilities which is before the court. I know the vehicles came into contact in some way, but there is absolutely no reliable, credible evidence that I can rely on to find the accused deliberately turned into his vehicle. [ 43 ] I also cannot find on the evidence that he deliberately sped up or came into contact with her.

It does appear that the collision was likely in Mr. Gill's lane. I say that because even on the evidence of the accused, she admits that she was trying to turn into that lane, so had she stayed in her own lane and gone straight ahead, the accident would not have occurred. She does not suggest that Mr. Gill came over into her lane and hit her. At worst, she says that Mr. Gill sped up and hit her when she tried to turn into that lane.

That is possible. [ 44 ] When I look at the cases that are provided here and the law with respect to what amounts to dangerous driving, there really does not seem to be much dispute by Crown and defence; in fact, there is none, as to the definition of dangerous driving. The Crown is correct, as is Mr. Silverman, in referring to the

definitions in R. v. Beatty

(2008) SCC 5, which talks about the mens rea involved and applying a modified objective test. I am not going to go all the way through those cases, because I am satisfied in this case that the Crown has failed to prove on the facts before me that there was either the actus reus or the mens rea with respect to the offence of dangerous driving, and when I find an absence in that regard, it goes without saying that since I find that the Crown has failed to prove that Ms.

Gill deliberately drove into this vehicle, then Count 2; namely, assault with a weapon, must also fail, because in order to convict on that, I would have to find that she intentionally used her vehicle to assault Mr. Gill and was using her motor vehicle as a weapon. [ 45 ] Having come to those conclusions, I frankly am still really puzzled as to what happened here. I do not have a strong feeling one way or the other as to what happened. I just do not know. I do not know if the accused perhaps did deliberately drive into this vehicle. She certainly had the necessary animosity towards the driver.

She may have recognized him in that brief second or two she had to see him. She may have recognized the car. I merely find that the Crown has not proven that beyond a reasonable doubt. [ 46 ] In the same way, it is possible that it was nothing more than inadvertent negligence. She was trying to get into the lane; perhaps Mr. Gill did not want to let her into the lane. That is another explanation for how the accident could have occurred.

It is equally feasible, in my view. [ 47 ] I must say one of the things I do find is that there is absolutely no evidence that she was tracking him or following him and came upon him, tracked him to that spot and deliberately did this.

I find that on all of the evidence, the extreme likelihood is that it was nothing more than mere coincidence that they ended up side-by-side at that location. [ 48 ] Even the fingering, the middle-finger gesture, is something which one sees unfortunately all too often in cases of road rage, and it is equally possible here that the accused is driving along, realizes she has got to get into the left lane, tries to get into the left lane, there is a vehicle there that is blocking her path, she gets mad, puts her finger out the window.

As I say, it is equally possible she does not even know it is driven by her ex-husband at that point in time. That would be a coincidence, an unfortunate one, but it is possible that she was just mad at the driver and decided to try and get into that lane. [ 49 ] So her driving was certainly not perfect. It was in all likelihood negligent in the manner in which she tried to get into that lane. She in all likelihood did not have a clear path into the lane. I am really unable to say if she signalled or not.

She did not give evidence about that and the other witnesses do not comment on it. [ 50 ] Unfortunately, there is no other witnesses who were in and around the scene who came forward to give evidence, so I have no independent evidence as to how the accident occurred. That may have been helpful, but apparently it was not available. [ 51 ] For all of those reasons, I find the Crown has failed to prove the case on Count number 1 and Count number 2, and I find the accused not guilty on both. W.G. MacDONALD Provincial Court Judge