HER MAJESTY THE QUEEN, v. ZHE WANG., 2017 NBPC 4

CANADA 2017NBPC04 PROVINCE OF NEW BRUNSWICK PROVINCIAL COURT BETWEEN: HER MAJESTY THE QUEEN, -and- ZHE WANG. BEFORE: Judge Marco R. Cloutier PRELIMINARY INQUIRY HELD: Saint John, New Brunswick DATE OF DECISION: August 17, 2017 APPEARANCES: Patrick Wilbur, on behalf of Her Majesty the Queen Reid Chedore, on behalf of the Accused

M.R. CLOUTIER PROV. CT. J .: I. Overview [ 1 ] This is a tragic and heartbreaking case involving the death of a taxi cab driver and serious injuries to his passenger. II. Nature of the Proceedings [ 2 ] Zhe Wang (“Mr.

Wang”) stands charged that on February 21, 2015, on Somerset Street, at the City of Saint John, in New Brunswick, he did: (1) operate a motor vehicle in a manner that was dangerous to the public and thereby did cause death to Wendel Wormell, contrary to s. 249(4) of the Criminal Code ; and (2) operate a motor vehicle in a manner that was dangerous to the public and thereby did cause bodily harm to Trisha Kirkpatrick, contrary to s. 249(3) of the Criminal Code . [ 3 ] These are both indictable offences and Mr. Wang elected trial by Queen’s Bench Judge and Jury.

The preliminary inquiry was held before this Court on June 20-22, 2017 and July 12, 2017. T he Crown offered no direct evidence of dangerous driving. Faute de mieux , it relied on circumstantial evidence. III. Evidence [ 4 ] The Crown called the following witnesses:

a) Denise Marie Hamel;

b) Dean Burnett;

c) Constable Andrew Lund;

d) Constable Michael Magee;

e) Gary Moore;

f) Trisha Kirkpatrick; and

g) Constable Daniel Weber. [ 5 ] The following documents were admitted into evidence by consent:

a) Photographs of the scene;

b) Curriculum Vitae of Gary R. Moore with attached Vehicle Safety Reports;

c) Curriculum Vitae of Constable Daniel Weber;

d) Collision Reconstructionist Report of Constable Daniel Weber dated 2015/05/06;

e) Statement of Admissions by counsel (email of November 4, 2016). [ 6 ] I will not repeat nor summarize the evidence of each witness. Suffice it to say, however, that the evidence of each was considered. [ 7 ] On February 21, 2015, at about 10:00 p.m., a motor vehicle accident occurred on Somerset Street in Saint John, New Brunswick (“the collision”). [ 8 ] Mr. Wang was operating a 2006 Mercedes Benz SUV heading south. The deceased, Wendell Wormell, a taxi cab driver, was heading north on the same street. [ 9 ] The collision occurred in the north travelling lane when Mr. Wang’s vehicle suddenly crossed the center line into the path of the oncoming taxi.

[10] The collision occurred in blowing snow when the road was snow covered. In fact, the yellow line could not be seen. [11] Admittedly, there is no evidence of vehicle failure which caused or contributed to the collision. Further, the Saint John PoliceForce made efforts to obtain the speed of the Mercedes Benz SUV but to no avail. The computer data recording did not produce anyspeed recordings. [12] Not surprisingly, the Defence admits that Mr. Wormell died in the collision. Likewise, it is not in dispute that Mrs. Kirkpatrick, apassenger in the taxi operated by Mr.

Wormell, suffered serious personal injuries which culminated in the collision. In my view, thoseare wise concessions. [13] In closing arguments, the Crown candidly conceded that it had no evidence at the preliminary inquiry, nor would it have at trial,with respect to the speed of Mr. Wang’s vehicle leading up to the collision. IV. Issues [14] Squarely put, the core issues that I must determine are whether the Crown has placed before this Court sufficient evidence that, ifaccepted by the trier of fact, would permit a reasonable jury properly instructed to conclude that:

a) Mr. Wang’s driving was a marked departure from the standard of care of a reasonably prudent driver; and

b) This driving caused Mr. Wormel’s death and Mrs. Kirkpatrick’s injuries. V. Law and Analysis [15] It is imperative to first review the relevant sections of the Criminal Code: Dangerous driving [16] Section 249(1) of the Criminal Code provides that: Everyone 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, conditionand 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 beexpected to be in that place; Subsection 3 thereof provides: Everyone who commits an offence under subsection 1 and thereby causes bodily harm to any other person is guilty of an indictableoffence and liable to imprisonment for a term not exceeding 10 years.

Standard for Committal [17] The standard for committal for trial on an alleged offence is the same as that governing a motion for directed verdict at trial.

The test is “whether or not there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilt”: UnitedStates of America v Sheppard, (SCC), [1977] 2 SCR 1067 (SCC). [18] The Crown has the obligation of making out a prima facie case at the preliminary inquiry stage in order to secure a committal fortrial. [19] Accordingly, in any case in which there is admissible evidence which could, if it were believed, result in a conviction therewill be a committal to stand trial: R v Arcuri, 2001 SCC 54 , [2001] 2 SCR 828 at par. 21 (SCC). [20] In determining discharge or committal, the preliminary hearing judge is not permitted to assess the quality, credibility or thereliability of the evidence: Arcuri, supra, par. 30.

If there is direct evidence for every element of the offence, the accused must becommitted: Arcuri, supra, par. 22. [21] Where direct evidence is not presented as to every element of the offence, the court must become involved in some limitedweighing of the evidence. This is explained by the Supreme Court of Canada in Arcuri, supra, at par. 23: The judge’s task is somewhat more complicated where the Crown has not presented direct evidence as to every element of the offence.

The question then becomes whether the remaining elements of the offence – that is, those elements as to which the Crown has notadvanced direct evidence – may reasonably be inferred from the circumstantial evidence. Answering this question inevitably requiresthe judge to engage in a limited weighing of the evidence because, with circumstantial evidence, there is, by definition, an inferential gapbetween the evidence and the matter to be established – that is, an inferential gap beyond the question of whether the evidence should bebelieved ...

The judge must therefore weigh the evidence, in the sense of assessing whether it is reasonably capable of supporting theinferences that the Crown asks the jury to draw. This weighing, however, is limited. The judge does not ask whether she herself wouldconclude that the accused is guilty. Nor does the judge draw factual inferences or assess credibility. The judge asks only whether theevidence, if believed, could reasonably support an inference of guilt.

[22] Further, at par. 30, the Court explains: In performing the task of limited weighing, the preliminary inquiry judge does not draw inferences from facts. Nor does she assesscredibility. Rather, the judge’s task is to determine whether, if the Crown’s evidence is believed, it would be reasonable for a properlyinstructed jury to infer guilt. Thus, this task of “limited weighing” never requires a consideration of the inherent reliability of theevidence itself.

It should be regarded instead as an assessment of the reasonableness of the inferences to be drawn from thecircumstantial evidence. [23] It is also trite law that with respect to the weighing of circumstantial evidence, if competing evidence arises, the preliminaryinquiry judge is not to weigh them but to accept the inference that favors the Crown: See Penney, Rondinelli, Stribopoulos in CriminalProcedure in Canada, (LexisNexis Canada Inc. 2011) at p. 497. [24] Equally important, a preliminary inquiry judge is entitled to admit and rely on the opinion evidence of an expert witness and thatreliance does not usurp the powers of the trier of fact: R v Baker 2001 CarswellOnt 2603.

Jurisprudence [25] I find instructive the following from R v Roy, 2012 SCC 26 , [2012] 2 S.C.R. 60 where Cromwell J. for the Courtreviewed and explained the law of dangerous driving as stated in the earlier case of R v Beatty, 2008 SCC 5 , [2008] 1 S.C.R. 49(S.C.C.): para 33 Beatty held that the actus reus for dangerous driving is as set out in s.249(1)(

a) of the Code, that is, driving "in a manner thatwas dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which themotor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place" (para 43). para 34 In considering whether the actus reus has been established, the question is whether the driving, viewed objectively, wasdangerous to the public in all of the circumstances.

The focus of this inquiry must be on the risks created by the accused's manner ofdriving, not the consequences, such as an accident in which he or she was involved. As Charron J put it, at para 46 of Beatty, "The courtmust not leap to its conclusion about the manner of driving based on the consequence. There must be a meaningful inquiry into themanner of driving" (emphasis added). A manner of driving can rightly be qualified as dangerous when it endangers the public. It is therisk of damage or injury created by the manner of driving that is relevant, not the consequences of a subsequent accident.

In conductingthis inquiry into the manner of driving, it must be borne in mind that driving is an inherently dangerous activity, but one that is both legaland of social value (Beatty, at paras. 31 and 34). Accidents caused by these inherent risks materializing should generally not result incriminal convictions. para 35 To summarize, the focus of the analysis in relation to the actus reus of the offence is the manner of operation of the motorvehicle. The trier of fact must not simply leap from the consequences of the driving to a conclusion about dangerousness.

There must bea meaningful inquiry into the manner of driving. para 36 The focus of the mens rea analysis is on whether the dangerous manner of driving was the result of a marked departure from thestandard of care which a reasonable person would have exercised in the same circumstances (Beatty, at para. 48). It is helpful toapproach the issue by asking two questions. The first is whether, in light of all of the relevant evidence, a reasonable person would haveforeseen 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 andtake steps to avoid it, if possible, was a marked departure from the standard of care expected of a reasonable person in the accused'scircumstances. para 37 Simple carelessness, to which even the most prudent drivers may occasionally succumb, is generally not criminal.

As notedearlier, Charron J., for the majority in Beatty, put it this way: "If every departure from the civil norm is to be criminalized, regardless ofthe degree, we risk casting the net too widely and branding as criminals persons who are in reality not morally blameworthy" (para. 34).The Chief Justice expressed a similar view: "Even good drivers are occasionally subject to momentary lapses of attention. These may,depending on the circumstances, give rise to civil liability, or to a conviction for careless driving.

But will not rise to the level of amarked departure required for a conviction for dangerous driving" (para. 71). [26] On the question of marked departure, Cromwell J. observes at par. 42: Driving which, objectively viewed, is simply dangerous, will not on its own support the inference that the accused departed markedlyfrom the standard of care of a reasonable person in the circumstances (Charron J at para 49; see also McLachlin CJ at para 66, and Fish Jat para 88).

In other words, proof of the actus reus of the offence, without more, does not support a reasonable inference that the requiredfault element was present. Only driving that constitutes a marked departure from the norm may reasonably support that inference.

[ 2 7] In Beatty , supra, the accused's truck had suddenly crossed the solid center line into the path of an oncoming motor vehicle, killing all three occupants. Witnesses had observed the accused's vehicle being driven in a proper manner prior to the accident and testified that the accident happened instantaneously. There was no evidence of speeding or vehicle failure and intoxicants were not a factor. After the accident, the accused stated that he was not sure what happened but that he must have fallen asleep and collided with the other vehicle. The trial judge acquitted the accused on all three counts.

The trial judge found that the test in R v Hundal required more than a few seconds of lapsed attention to establish objectively dangerous driving. She noted that, in the absence of something more, the accused's few seconds of negligent driving was insufficient evidence to support a finding of a marked departure from the standard of care of a prudent driver. [ 28 ] The case of R v Henline , 2016 ABPC 237 involved the preliminary inquiry of the accused. His vehicle had flipped over onto farmer W's field in the early morning hours and his passenger suffered bodily injury.

The accused was charged with dangerous driving causing bodily harm. There was dearth of evidence as to why the accused's vehicle flipped or rolled in W's field, with consequent bodily injury to his passenger . There was no direct evidence of dangerous driving contrary to s. 249 of the Criminal Code . The only way for a reasonable jury to enter a guilty verdict would be to infer that the movement of the accused's vehicle off the roadway into the field was due to wanton or reckless disregard by the accused for the life and the safety of others.

There was no evidentiary basis to suggest that and even if evidence showed accused purposely drove into field, in absence of other factors, it could not lead to reasonable inference of wanton and reckless disregard so as to result in criminal culpability. The accused was discharged.

Applying the law to this case [ 29 ] Armed with the above test for committal at a preliminary inquiry and the definition of dangerous driving, I shall now analyze the evidence with those governing principles in mind. [ 30 ] In the instant case, as in Henline , there is no direct evidence of dangerous driving contrary to s. 249 of the Criminal Code ; accordingly, for a jury to convict they must draw certain inferences.

The question with respect to committal or discharge becomes whether or not those inferences are reasonable and could support an inference of guilt. [ 31 ] I am not satisfied that, absent direct evidence of dangerous driving, a reasonable jury properly instructed could infer that the driving of a vehicle on a snow covered hill and suddenly crossing the centre line in the midst of blowing snow is objectively dangerous. The singular effect of concluding otherwise would be to cast the net too wide. Let me explain. [ 32 ] In order to infer that Mr.

Wang’s driving was objectively dangerous, and thus satisfying the actus reus of the dangerous driving offence, a jury would have to infer other facts. Chief among those would be speeding, disobeying traffic signals, showing off, displaying of poor driving, impairment by alcohol or by drugs or some other act of recklessness or assumption of risk causing or being more than an insignificant contributor to the movement of Mr. Wang’s vehicle crossing into the path of the oncoming taxi. N o evidence of such driving is before the Court. [ 33 ] I am also mindful that immediately prior to the collision, Mr.

Wang was proceeding up the hill behind Mr. Burnett’s vehicle on Somerset Street. Mr. Burnett says there was blowing snow, he was driving below the speed limit of 50 km/h and nothing from Mr. Wang’s driving caught his attention. [ 34 ] The Crown argues that a reasonable jury, properly instructed, could infer that Mr. Wang either attempted an unsafe passing manoeuver or was driving too fast when he crossed the center line into the the path of the oncoming taxi.

With respect, I disagree. [ 35 ] As explained earlier, it is trite law that with respect to the weighing of circumstantial evidence, if competing evidence arises, the preliminary inquiry judge is not to weigh them but to accept the inference that favors the Crown. In my opinion, however, t here is simply no factual or evidentiary basis in this case on which to draw the inferences suggested by the Crown. Such inferences could only be based upon mere conjecture or speculation and could not be reasonably drawn.

No jury could reasonably infer objective dangerousness in the circumstances and therefore I find there is no evidence of the actus reus of dangerous driving. [ 36 ] The approach submitted by the Crown, which I respectfully reject, focuses on the consequence of driving, i.e. the collision, but not on the manner of driving. It bears underscoring that to establish the required actus reus , the driving must have been dangerous to the public under all of the circumstances. The meaningful inquiry must be into the manner of driving: R v Roy , supra.

That an accident causing death occurred does not, on its own, establish the actus reus . [ 37 ] One more point. Constable Weber, declared an expert by the Court in traffic crash reconstruction, was duly qualified to provide

opinion evidence as to the causes and effects of motor vehicle accidents. That being said, however, Constable Weber did not provide opinion evidence as to the cause of Mr. Wang’s vehicle crossing over the center line; that is, he merely opined that the collision occurred in the oncoming taxi’s lane of travel. Likewise, during his viva voce evidence, Constable Weber had no evidence to offer as to the speed of Mr.

Wang’s vehicle leading up to the collision. [ 38 ] I would offer one parenthetical remark: the Court appreciates Constable Weber’s candor in outlining which sections of his report contained his personal views - without any citation for the basis of his personal opinions – as opposed to those expert opinions he expressed based on recognized principles of accident reconstruction. As aptly observed by the Supreme Court of Canada in R v Sekhon , 2014 SCC 15 at par. 46 , a judge has an “ongoing duty to ensure that expert evidence remains within its proper scope”. VI.

Conclusion [ 39 ] Based on the record before me, I find that there is a dearth of evidence as to what led up to Mr. Wang’s vehicle crossing the center line into the path of the oncoming taxi. There is simply no evidence before me concerning the manner of driving to support an inference that the driving was a marked departure from the standard of care that a reasonable person would have exhibited under the circumstances.

Accordingly, no jury properly instructed could reasonably return a verdict of guilty with respect to the dangerous driving offences as alleged. [ 40 ] In the result, I have determined that the Accused will not stand trial on these charges before me. He is discharged. [ 41 ] In closing, I take the liberty of borrowing a passage from R v Willock (2006), 40 C.R. (Ont. C.A.) at par. 31 by Doherty JA.: conduct that occurs in such a brief time frame in the course of driving, which is otherwise proper in all respects, is more suggestive of the civil rather than the criminal end of the negligence continuum.

Dated at Saint John, New Brunswick, this 17 th day of August 2017. ____________________________________ Marco R. Cloutier Judge of the New Brunswick Provincial Court